GENERAL TERMS AND CONDITIONS
for all deliveries of EYYES GmbH, hereinafter referred to as EYYES, as well as in business dealings with companies.
Article 1 ‒ General provisions, scope of application
1) EYYES shall provide its deliveries and services to customers solely on the basis of the following General Terms and Conditions.
In connection with ongoing business relationships, the valid version of these General Terms and Conditions shall also apply to all future business transactions without special notice or reference.
2) EYYES shall not recognise customers’ deviating, conflicting or supplementary general terms and conditions, unless EYYES has expressly accepted their validity in writing. EYYES’ General Terms and Conditions shall also apply if EYYES carries out delivery to the customer without reservation, despite being aware that the customer has contradictory or deviating conditions.
3) The General Terms and Conditions shall not apply in relation to consumers but only in relation to businesses. A business shall be understood as anyone who runs a business but also as a permanently established organisation pursuing independent business activities even if these activities are not profit-oriented. These include businesses by virtue of legal form and businesses by virtue of registration as well as legal persons under public law.
Article 2 ‒ Conclusion of contracts
1) EYYES’ offers shall always be non-binding.
2) After receiving a customer’s order, a contract shall be concluded only following EYYES’ written order confirmation.
3) Verbal agreements, as well as changes and amendments to contracts concluded with EYYES shall only be valid if confirmed by EYYES in writing. The revocation of the written form requirement can only be made in writing, explicitly and unambiguously.
Article 3 - Delivery
1) The customer must meet all contractual and cooperation obligations in order for the agreed delivery periods to be observed. Unless otherwise agreed, the delivery period shall begin with the conclusion of the contract (see Article 2, paragraph 2), but not before EYYES receives contractually agreed documents, such as permits, approvals, etc. to be provided by the customer, as well as advance payments.
2) The conclusion of the contract shall be subject to the reservation that EYYES receives correct and timely delivery from its suppliers. This shall apply only if EYYES is not responsible for the incorrect or untimely delivery by its supplier, especially if a congruent hedging transaction is concluded with the supplier.
The customer shall be immediately informed about the incorrect or untimely delivery by the supplier. Unless a fixed transaction has been agreed, the delivery period shall be extended if not mutually agreed otherwise.
In case of deadline delays for fixed transactions or consensual order cancellation, the payments already made shall be refunded immediately.
3) EYYES shall not be held liable for any delays in delivery and services as a result of force majeure and events which render the provision of services significantly more difficult or impossible for EYYES, such as strikes, lockouts, official orders, etc., including if these occur with EYYES’ suppliers or subcontractors.
They shall entitle EYYES to extend the delivery period or service provision by the duration of the event or, if the performance of the contract is seriously questioned or impossible, to withdraw completely or partly from the contract without the customer being entitled to compensation.
4) EYYES shall reserve the right to make technical changes, such as changes in shape, colour and/or weight, provided this does not significantly affect the customer’s use.
5) Transport shall be carried out at the expense and risk of the customer, unless otherwise agreed in the contract.
6) The risk of accidental loss and accidental deterioration of the goods shall be transferred to the customer upon delivery, in the event of a sale by dispatch, upon delivery of the goods to the forwarding company, to the carrier or to the person or institution engaged to perform the shipment. The delivery shall be tantamount to the customer’s default in accepting. Insurance against damage of all sorts shall be provided only if ordered and borne by the customer.
Article 4 ‒ Terms of payment
1) EYYES’ invoices shall be payable in full within 14 calendar days after the invoice date, unless otherwise agreed. Any different terms of payment shall be stated in the offer and specified in the order confirmation. The customer shall be in default of payment after the expiry of this period.
2) The acceptance of bills of exchange and checks shall require EYYES’ written consent and shall be only for the purpose of payment. Discount charges and other additional costs shall be borne by the customer. Any liability for timely collection or for timely protest shall be excluded.
3) Payments shall be deemed to have been made on the due date if EYYES is able to dispose of the amount without any reservation.
4) If the customer is in default, the interest of 9.2 % above the base rate shall be charged until payment. EYYES shall reserve the right to prove higher damages due to the default and to enforce them. In addition, EYYES shall be entitled to suspend further deliveries immediately and to charge the customer the consequential disadvantages.
5) Offsetting EYYES shall be permitted only for the claims recognized by EYYES or legally established claims.
The customer may exercise the right of retention only if the particular counterclaim is based on the same contractual relationship.
Even in an ongoing business relationship, each individual order shall be regarded as a separate contractual relationship.
Provided that the right of retention exists, customer’s payments can be withheld only until the settlement of the counterclaim, to the extent which is in proportion to the counterclaim.
Article 5 ‒ Retention of title
1) EYYES shall retain ownership of all delivered goods until full payment of the purchase price or labour cost.
2) The customer shall be obliged to handle the goods subject to retention of title carefully and to prevent third parties from accessing them, for instance in the event of seizure, as well as to notify EYYES immediately of any damage or destruction of the goods.
The customer shall immediately report a change of ownership of the goods as well as the change of his own registered office.
3) EYYES shall be entitled to withdraw from the contract in case of a breach of contract by the customer, in particular in the event of a breach of an obligation under paragraph 2 of this Article, and to demand the return of the goods.
4) The customer shall be entitled to resell the goods in regular business transactions and by transferring the retention of title, whereby pledging, transferring by way of security, giving away or granting shall not be permitted. The customer shall already assign to EYYES all claims up to the amount of the claims still due to EYYES which arise by the resale against a third party. EYYES shall accept the assignment for payment.
After the assignment, the customer shall be authorised to collect the claim. EYYES shall reserve the right to collect the claim itself as soon as the customer fails to meet their payment obligations properly and is in default of payment.
Upon request, the customer shall also be obliged to inform the buyer of the assignment and to provide EYYES with all the information and documents necessary for collection.
5) In the event of non-payment, application for or opening an insolvency proceeding or an extrajudicial settlement procedure, the right to resell, use or install the goods subject to retention of title and the authorisation to collect the assigned claims shall expire. This authorisation shall also expire in the event of a protest of a cheque or a bill of exchange. In these cases, EYYES shall be entitled to collect the goods subject to retention of title. If the customer has mixed/combined the goods subject to retention of title with other goods, EYYES shall be entitled in agreement with the customer on the basis of invoice documents to separate the goods subject to retention of title.
If the customer does not participate in this separation, EYYES shall be entitled to effectuate it with the assistance of an expert.
6) If processing takes place with items not belonging to EYYES, EYYES shall acquire co-ownership of the new item in proportion to the value of the goods it has delivered to the other processed items. The same shall apply if the goods are mixed with other items not belonging to EYYES.
Article 6 ‒ Warranty, liability
1) The warranty period shall be one year unless otherwise agreed in writing and shall begin upon delivery. The customer's warranty rights shall be subject to their duly complying with the inspection and control obligation. Article 377 of the Austrian Commercial Code shall be expressly applicable, even in the case of a work contract.
The customer shall notify EYYES of any defects without delay, but at the latest within a period of 8 days after receipt of the delivery, in writing, stating the nature and extent of defects; otherwise the enforcement of warranty claims shall be excluded. The timely sending shall be sufficient for compliance with the time limit.
2) The warranty shall not include damage to the goods or parts thereof which has occurred after delivery by improper treatment, negligence or accident.
Furthermore, it shall not include any goods or parts thereof that have been manipulated, repaired or altered by anyone other than EYYES or a person authorised to do so by EYYES. Furthermore, the warranty shall be excluded if the customer has not completely adhered to the received user manuals, operating instructions, manuals, maintenance books and the like and if the customer cannot prove that the defect was already present at the time of handover.
3) The customer shall bear the full burden of proof for all claims, in particular for the defect itself, its existence at the time of handover/takeover as well as for the time of defect discovery and for the timeliness of the complaint. Article 924 of the Austrian Civil Code shall not apply.
In case of proven defects, the customer’s right of retention shall be limited to the purchase price/labour cost or to three times the repair cost, whichever is lower.
4) If there is a defect for which EYYES is responsible, EYYES shall be given the opportunity, at its own choice, to either repair the defect or replace the goods within a reasonable time period. For minor defects, the customer shall not be entitled to a replacement.
The customer’s right to price reduction shall be excluded. However, EYYES shall be entitled to offer a price reduction to the customer, if the defect is minor and the repair or replacement is inconvenient for EYYES.
5) The customer shall only be entitled to replacement of defective goods if EYYES has expressly refused to correct the defect or after two failed correction attempts and after setting a reasonable grace period. The replacement shall be asserted by legal action; for minor defects, the replacement shall be excluded.
6) EYYES’ product descriptions, public statements and promotions shall not constitute any stipulated or warranted properties, unless expressly agreed.
7) Warranty claims shall not exist in case of a minor deviation from, where appropriate, an explicitly agreed condition or a minor impairment of usability.
8) The assignment of warranty claims (including those for payment) to third parties shall be excluded.
9) In case of software, the provisions relating to warranty referred to in Article 7 shall also apply.
10) EYYES’ liability for damages, including for consequential damages, in connection with the goods delivered by EYYES, as well as repairs, maintenance, consultancy, training, transport and the like, shall be limited to cases of intent or blatant gross negligence, if the exclusion of liability is not contrary to mandatory law.
As to the amount, any compensation for damages within the scope of a contractual relationship shall be limited to the amount of 20 % of the payment received by EYYES, if the limitation of liability is not contrary to mandatory law.
11) To the extent permitted by law, EYYES’ liability for any loss of property, immaterial, indirect or consequential damages, loss or loss of profit shall be excluded, unless otherwise stated herein or elsewhere. If the customer uses the goods predominantly in their company, the product liability for damage caused by damaged goods shall be excluded.
Article 7 ‒ Software and licence conditions, property rights
1) If software products are supplied by other companies, the terms and conditions and/or other regulations of these companies shall apply to that part of the delivery.
2) Instruction, support and maintenance services shall not be included in the software price and shall, if necessary, be agreed upon separately in writing and remunerated accordingly.
3) If software products are supplied by other companies, the terms and conditions and/or other regulations of these companies shall apply to that part of the delivery.
4) Software conditions shall be considered accepted upon conclusion of the contract. The license shall be considered granted upon the delivery of the software and the agreed licence fee shall be due immediately.
5) If software is supplied to EYYES, the source code shall not be covered by the contract and shall therefore be neither transferred nor deposited. The customer shall not process or modify the software unless for the statutory purposes of troubleshooting and the production of interoperability.
The customer shall not be permitted to make retranslation of the object code into source code or the reverse engineering and decompilation. In all other respects, Article 40e of the Copyright Act shall apply. Any duplication or reuse of the software supplied by EYYES shall not be permitted, unless otherwise explicitly agreed in writing in the contract.
However, for the purpose of data backup, the customer shall be entitled to make a backup copy of each software. The customer shall also duplicate all identifiers, trademarks, copyright notices in an unchanged form, treat the copy with care and protect it from access by third parties. The customer shall be prohibited from further duplication, in particular the copying of the manual, documentation and operating instructions.
The customer shall furthermore be prohibited from developing the source code on the software.
6) By purchasing a license for EYYES software, the customer shall have no right whatsoever to link or combine it with other products if this violates EYYES’ patent application or patent.
7) EYYES shall grant the customer the non-exclusive, non-transferable right to internal and intended use of the goods, without any limitation of time or place, as well as the right to the contractually agreed use. EYYES shall retain all its non-formal knowledge and practical experience as well as all industrial property rights. EYYES shall furthermore retain the sole copyright and shall be solely responsible for the registration of trademarks, designs or patents.
EYYES shall be entitled to patent application for any service inventions.
EYYES shall have the exclusive right to be named as the author or, if applicable, the inventor.
8) EYYES shall not accept any warranty and/or liability for the software that has been modified or improperly used by the customer, particularly when used contrary to due diligence requirements described in user manuals or other accompanying materials. Furthermore, EYYES shall not be liable for the functioning of software supplied by EYYES when this software is linked with hardware and software supplied by third parties or for the self-installation of the software by the customer.
9) Software shall be stored on data carriers. EYYES shall expressly limit the warranty to exclude technically incorrect data storage. Before opening the seal of the data carrier, the serial number on the data carrier must be compared to the serial number on the invoice.
10) The subject of the contract shall be the sale and installation of cameras. The customer/buyer shall have the sole responsibility for ensuring compliance with (data protection) legal provisions regarding image acquisition and image processing (especially Article 12 of the Data Protection Act, Article 6 of the GDPR and Article 78 of the Copyright Act).
Article 8 ‒ Export control
1) Delivery items shall be intended for the end-use in the country of delivery agreed with the customer and may not be exported without authorisation.
2) Prior to exporting products or technical information received from EYYES, the customer shall undertake to obtain all necessary export permits or other documents under their own responsibility.
Article 9 ‒ Final provisions
1) The contractual relationship shall be governed exclusively by Austrian substantive law, with the exception of Austrian international private law provisions governing conflicts of laws as well as of the United Nations Convention on Contracts for the International Sale of Goods.
2) Place of performance for all services shall be Krems.
3) The exclusive place of jurisdiction for all disputes arising from this contract shall be Vienna. However, EYYES shall be entitled in individual cases to bring an action before the court having jurisdiction at the place of the customer’s registered office.
4) Should any provision of these General Terms and Conditions be or become fully or partly invalid, ineffective or unenforceable, the validity of the remaining provisions shall remain unaffected. The relevant provision shall be replaced by a valid, effective and enforceable provision that is closest in its economic substance to the relevant provision.
Krems, July 2020