GENERAL TERMS AND CONDITIONS

for product deliveries and standard software from EYYES GmbH, hereinafter referred to as EYYES -

for use in business dealings with companies

 

§ 1 General - Scope

  1. EYYES delivers the product to the customer exclusively on the basis of the following general terms and conditions (“AGB”). In the course of an ongoing business relationship, these General Terms and Conditions apply to all future business without special notice or reference.

  2. EYYES does not recognize deviating, conflicting or supplementary general terms and conditions of the customer unless EYYES has expressly agreed to their validity in writing. The general terms and conditions of EYYES also apply if EYYES unconditionally carries out the delivery to the customer in the knowledge of conflicting or deviating conditions.

  3. These terms and conditions are not intended for use by consumers, but only by entrepreneurs.

 

§ 2 conclusion of contract

  1. If a customer makes a written request to EYYES regarding a product, EYYES submits a written offer (“EYYES offer”) within a reasonable period of time or rejects the request in writing.

  2. EYYES offers are always subject to change and non-binding and contain information regarding the quantity and price of the requested product, the terms of payment, the delivery period and the place of delivery, information about the technical specification of the product, the official approvals and regulations for the manufacture of the product. In addition, further order-specific information may be included.

  3. If the customer places a written order ("order") on the basis of an EYYES offer, a contract comes into existence through the written order confirmation of the order by EYYES ("order confirmation"). If the order deviates from the EYYES offer or these General Terms and Conditions, the priority of the EYYES offer and these General Terms and Conditions apply.

  4. EYYES expressly points out that the order confirmation by EYYES in accordance with 3) results in a binding contract between the customer and EYYES. Verbal agreements, as well as changes, additions or the cancellation of contracts concluded with EYYES, are only valid if they have been confirmed by EYYES in writing, unless otherwise agreed in these terms and conditions. The written form requirement can only be lifted in writing, expressly and without any doubt.

 

 

§ 3 delivery

  1. EYYES delivers the product within the delivery period specified in the EYYES offer. Adherence to agreed delivery deadlines presupposes the fulfillment of the customer's contractual and cooperation obligations. Unless otherwise agreed in the EYYES offer, the delivery period begins with the conclusion of the contract (cf. § 2 Paragraph 3), but not before receipt of the documents, such as permits, etc. Like., Releases and deposits or advance payments at EYYES.

  2. EYYES 'obligation to deliver within the delivery period is subject to the correct and timely delivery to EYYES by its suppliers. This only applies if EYYES is not responsible for a delay due to incorrect or late delivery by the supplier. EYYES will immediately inform the customer of such a delay in delivery. In these cases, the delivery period is extended by the duration of the delay, unless something else is agreed in writing between EYYES and the customer. If the product is not available, in the event of default in fixed transactions or a mutually agreed termination of the contract, the fee already paid will be refunded immediately.

  3. Delays in delivery and performance due to force majeure and events that make EYYES's performance significantly more difficult or impossible, such as fires, strikes, lockouts, embargos, bottlenecks, epidemics, quarantine, war, acts of war and terrorism, riots, unrest, official orders or official orders Failures, serious disruptions to the public transport network or the power supply, natural events (e.g. severe storms, flooding, mudflows) etc., even if they occur at suppliers of EYYES or its subcontractors, is not the responsibility of EYYES. If the fulfillment of the contract is seriously questioned or made impossible by an event of force majeure, EYYES is entitled to withdraw from the contract in full or in part by reimbursing a fee already paid by the customer without the customer being entitled to compensation claims.

  4. Unless otherwise agreed, the product is delivered in such a way that EYYES notifies the customer as soon as the product is sent to Dr. Franz Wilhelmstraße 2A, 3500 Krems an der Donau is available for collection within the delivery period. The risk of accidental loss and accidental deterioration of the product passes to the customer or a person commissioned by the customer. The handover is the same if the customer or the person commissioned by him is in default of acceptance. In the event of a delay in acceptance by the customer, EYYES is entitled to deposit the product. It acts as a debt relief. The customer has to bear the costs of the proper deposit. The customer has to bear the accidental destruction and the accidental deterioration of the product after deposit.

  5. If a shipment of the product has been expressly agreed in writing between EYYES and the customer, the risk passes to the customer when the goods are handed over to the freight forwarder, the carrier or any other person or company responsible for carrying out the shipment. This point in time is also decisive for compliance with the delivery period. Transport takes place at the expense and risk of the customer. Insurance against damage of all kinds is only at the order and expense of the customer.

 

§ 4 terms of payment

 

  1. EYYES invoices are due for payment without deduction within 14 calendar days of the invoice date, unless otherwise agreed in writing. Different payment terms are shown in the offer and specified in the order confirmation. After this period the customer is in default of payment.

  2. Payments must be made by bank transfer to the account announced by EYYES. Bills of exchange and check payments are not recognized as fulfillment of the payment obligation.

  3. Payments are deemed to have been made on the date when EYYES can dispose of the receipt of the amount without reservation.

  4. If the customer is in arrears, interest of 9.2% above the base rate will be charged until payment is made. EYYES reserves the right to prove and assert higher damage caused by delay (especially due to reminder, collection, collection and information costs). If payment is delayed for more than 20 days, EYYES is also entitled, at its own discretion, to stop deliveries immediately or to withdraw from all contracts with the customer and to accuse the customer of the following disadvantages. Even with an ongoing business relationship, each individual order is to be regarded as a separate contractual relationship.

  5. Upon becoming aware of a significant deterioration in the customer's financial situation, EYYES is also entitled to request 100% advance payment for deliveries that have not yet been carried out or to discontinue delivery or to withdraw from the contract.

  6. Offsetting against EYYES is only permitted with claims recognized or legally established. The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship. Even with an ongoing business relationship, each individual order is to be regarded as a separate contractual relationship. If there is a right of retention, payments by the customer may only be withheld until the counterclaims have been settled, which is in a reasonable relationship to the counterclaims.

 

§ 5 retention of title

 

  1. EYYES reserves ownership of all delivered products until all invoice amounts have been paid in full. The retention of title serves as security for the entire claim balance of EYYES against the customer.

  2. The sale, pledging, transfer by way of security, giving away or surrendering in exchange for products subject to retention of title is not permitted. The customer is obliged to treat the products subject to retention of title with care and to notify EYYES immediately of third-party access to the products, for example in the event of a seizure, as well as any damage or destruction of the products. The customer must immediately notify the customer of a change of ownership of the product and a change of business location. If processing takes place with objects not belonging to EYYES, EYYES acquires co-ownership of the new item in relation to the value of the products it supplies to the other processed objects. The same applies if the product is mixed with other objects not belonging to EYYES.

  3. In the event of a breach of the contract by the customer, in particular in the event of a breach of an obligation under this provision, EYYES is entitled to withdraw from the contract without a reminder and to demand the return of the product or, if this is no longer possible, full satisfaction.

  4. In the event of suspension of payment, application for or opening of insolvency proceedings, EYYES is entitled, based on the invoice documents, to separate out the goods subject to retention of title in agreement with the customer or, in the case of insolvency proceedings, with the insolvency administrator. If the customer, or in the case of insolvency proceedings the insolvency administrator, does not participate in this separation, EYYES is entitled to do this alone with the help of an expert.

 

§ 6 warranty, liability

 

  1. EYYES guarantees that at the time of delivery in accordance with § 3 paragraph 4) and 5) the products (i) were manufactured and approved in accordance with mandatory legal provisions for use in the territory of the European Union and (ii) those on offer or in the technical specifications listed with the product. A defect is only present if a product does not meet this guarantee. Changes in the visual appearance, such as in shape, color and / or weight do not constitute a defect.

  2. Unless otherwise agreed in writing, the deadline for the assertion of a defect within the meaning of section 6 (1) is one year and begins with the handover of the product in accordance with section 3 (4) or 5). The customer must examine the product immediately after delivery or have it examined. Section 377 UGB is expressly applicable, even in the case of a contract for work. The customer must notify EYYES of defects immediately, but at the latest within a period of 8 days from delivery or the point in time at which the customer should have discovered the defect, with a precise statement of the type, scope and circumstances at the time the defect occurred; The customer loses his right to invoke a defectiveness of the product, for whatever legal reason, if he has not properly complied with his inspection and complaint obligations in accordance with the contract. Deadline is sufficient for the timely dispatch. In the case of notification of defects, the customer is obliged to first accept the product and store it properly.

  3. The warranty does not extend to damage to the product or parts thereof, which resulted from improper handling, negligence or accident after delivery. All rights and claims of the customer resulting from the defectiveness of the product, on whatever legal basis, expire if (i) without the written consent of EYYES the customer himself or third parties make changes, repairs or repairs to the product (ii) the customer Instructions from the user manuals, operating instructions, manuals, maintenance books and the like handed over to him have not been followed in full or (iii) the customer makes changes to the vehicle after installing the product or (iv) the customer does not allow EYYES to make technical, mandatory or expedient changes to the product. In this context, EYYES expressly draws attention to the warning notices contained in the accompanying documentation, which must be strictly observed and observed in order to avoid any damage. We explicitly warn against non-compliance with these instructions and warnings when using the products.

  4. For parts of the product that EYYES itself obtained from its suppliers, EYYES only provides warranty claims against the supplier within the scope of EYYES.

  5. The customer bears the full burden of proof for all requirements for claims, in particular for the defect itself, its existence at the time of handover and for the time of detection of the defect, for the timeliness of the notice of defect and for compliance with the obligations that apply to it when using the products. § 924 ABGB is not applicable.

  6. If there is a defect for which EYYES is responsible, EYYES is entitled to choose to improve or exchange it within a reasonable period of time. The warranty period is not extended if improvements are made. When exchanged for the first time, it is granted for the replacement product for a period of 6 months after handover in accordance with § 3 Paragraph 4) or 5). In the case of an exchange, EYYES assumes no liability for the exact match with the first delivery. If in the course of the rectification of a defect reported by the customer it turns out that it is not a defect for which EYYES is responsible, the customer is obliged to compensate EYYES services as a repair service.

  7. The customer's right to a price reduction is excluded, however, EYYES is entitled to offer the customer price reduction if the defect is minor in EYYES's estimation and the improvement or exchange for EYYES is uneconomical or only possible with disproportionate effort.

  8. The customer is only entitled to change and replace the defect rectification if EYYES expressly refuses to rectify the defect or if attempts to improve it fail twice and a reasonable grace period has been set. The change must be brought by action. In the case of minor defects, the customer is not entitled to change.

  9. EYYES 'product descriptions, public statements and promotions, advertising or (oral or written) advice to the customer by EYYES do not establish any conditional or assured properties, unless expressly guaranteed in writing by EYYES. Even if such an assurance exists, there are no warranty or other claims by the customer against EYYES if there is only an insignificant deviation from the expressly agreed quality or if there is only an insignificant impairment of the expressly agreed usability.

  10. The customer declares that he purchases the product only for his own use within his company and not for resale. Deviating conditions apply only if it has been expressly agreed in writing between EYYES and the customer. In these cases, the customer waives his recourse according to § 933b ABGB. The assignment of warranty claims for damages or the like (including those directed towards payment) to third parties is excluded. The transfer of other or all rights of the customer from the contract to third parties is excluded. If the customer resells the product (inadmissible), the customer loses all claims against EYYES, regardless of the legal basis, which result from the defectiveness of the product.

  11. Section 7 also applies to software components of the product.

  12. EYYES 'liability for damage caused in the course of business by EYYES or by EYYES vicarious agents is limited to cases of intent or gross negligence. In the event of an intentional breach of essential contractual obligations, the liability of EYYES is limited to twice the fee received from EYYES for the contract, in the execution of which the damage was caused. In all other cases, any compensation is limited to the amount of the fee received from EYYES.

  13. EYYES liability for pure property damage, immaterial disadvantages, indirect damage, (defect) consequential damage, loss or loss of profit, loss of earnings and loss of employment opportunities as well as frustrated expenses that are not typically associated with the damage are excluded, unless expressly stated otherwise or otherwise agreed.

  14. The limitations of liability in paragraphs 12) and 13) also apply to the liability of EYYES employees. The liability restrictions of paragraphs 12) and 13) do not apply in the case of personal injury or damage that cannot be excluded under the Product Liability Act.

 

§ 7 software and license conditions, property rights, confidentiality

 

  1. EYYES grants the customer the non-exclusive, non-transferable, unlimited right to use the software that is part of the product for the purposes of his company within the EU. The customer is not entitled to transfer the software to third parties for use or to make it available to third parties (e.g. by renting). The license is deemed to have been granted when the product is put into operation legally and any agreed license fee is due immediately.

  2. The source code of the software is not part of the contract and is therefore neither handed over nor deposited; The customer is prohibited from editing or changing the software or is only permitted in legally binding cases. Duplication or further use of the software supplied by EYYES is not permitted or only permitted in legally mandatory cases. Reproduction, especially copying of the manual, documentation and operating instructions may not be carried out by the customer. The customer is also prohibited from developing source codes on the software.

  3. The purchase of a license for EYYES software does not in any way give the customer the right to combine or combine it with other products if a patent application or a patent or another commercial property right of EYYES is violated. In particular, EYYES is not liable for the functioning of software supplied by EYYES with hardware and software supplied by third parties, or for the customer installing the software himself. In all cases of unauthorized changes and / or processing of the software, all warranty claims and claims for damages by the customer are excluded, unless the customer can prove that the unauthorized changes and / or modifications have no influence on the functionality of the software according to the technical specification.

  4. EYYES assumes no guarantee and / or liability, regardless of the legal basis, for the software that was not used properly by the customer, in particular in violation of the due diligence obligations described in the user manuals or other accompanying materials supplied with the product. EYYES expressly draws attention to the warning notices contained in the accompanying documentation for the product, which the customer must observe and comply with.

  5. The software is stored on data media. EYYES expressly limits the warranty to technically incorrect data storage. Before opening the seal of the data carrier, the serial number of the data carrier must be checked for equality with the serial number on the invoice. Apart from that, the obligations to inspect and give notice of defects apply in accordance with Section 6 (2).

  6. Services for instruction and introductory support as well as maintenance are not included in the purchase price and must be agreed separately in writing and paid for accordingly.

  7. If the product contains software components from other companies, the terms and conditions and / or other provisions of these companies apply to this corresponding part of the delivery.

  8. EYYES retains all industrial property rights to the product or parts thereof or to documents, as well as all knowledge and know-how of EYYES that is not protected by formal law, and is solely responsible for the registration of trademarks, samples or patents. EYYES alone has the right to file a patent for any service inventions. EYYES is exclusively entitled to be named as the author or, if applicable, the inventor.

  9. The customer is solely responsible for compliance with the (data protection) legal provisions for image recording and image processing (in particular § 12 Data Protection Act, § 6 GDPR, § 78 UrhG). EYYES expressly points out that EYYES is entitled to make legally required and technically expedient changes to the product at any time.

  10. The customer undertakes to keep technical, financial, business or market-related information, documents or knowledge of EYYES confidential, which becomes known to him in the course of the contractual relationship with EYYES (" confidential information "). The customer will only use confidential information for the purpose of executing the contract.

 

§ 8 export control and product safety

 

  1. The products are intended and approved for exclusive use in the territory of the European Union and may only be used in the country of destination specified in the offer and located within the European Union. If the customer intends to market the product and / or technical information or documents from EYYES outside the European Union or the destination country specified in the offer (" export "), the customer is obliged to obtain all necessary export permits before exporting or obtain any other required legal or other approvals and ensure that all applicable regulations are followed. Furthermore, if the product is placed on the market outside the European Union or the country of destination specified in the offer, the customer must indemnify and hold EYYES harmless with regard to all claims by third parties.

  2. If the customer uses or disposes of the product contrary to the provisions of the contract or does not adhere to the instructions in the user manuals or other accompanying materials supplied with the product, the customer is also obliged to, in particular but not exclusively, indemnify EYYES against all claims by third parties the title of product liability, indemnify and indemnify. In this context, EYYES expressly draws attention to the warning notices contained in the accompanying documentation, which must be strictly observed and observed in order to avoid any damage. We explicitly warn against non-compliance with these instructions and warnings when using the products.

  3. The obligation to indemnify and indemnify does not apply if EYYES caused damage intentionally or through gross negligence.

 

§ 9 final provisions

 

  1. Only Austrian substantive law applies to the contractual relationship, to the exclusion of the reference norms of Austrian international private law and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

  2. The place of performance for all services is Krems.

  3. The exclusive place of jurisdiction for all disputes arising from this contract is Vienna. In individual cases, however, EYYES is also entitled to file a suit with the courts responsible for the customer's registered office.

  4. Should any regulation of these general terms and conditions be or become invalid, ineffective or unenforceable in whole or in part, this does not affect the remaining provisions. The relevant provision (s) is replaced by a provision that comes closest to its economic content according to the relevant provision (s), but is valid, effective and enforceable.

 

 

Krems, July 2020

 

 

© 2019 by EYYES
ALL RIGHTS RESERVED

EYYES GMBH

DR. FRANZ-WILHELMSTRASSE 2A
3500 KREMS AN DER DONAU
AUSTRIA

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