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General Terms and Conditions |
1. Applicability
1.1. These terms and conditions as well as any additional
conditions of TEMPORE Zeiterfassungssysteme Ges.m.b.H. ("TEMPORE") are
valid for the delivery and consequently also for the provision of
services. In the absence of any other agreement, with regards to the
upkeep of the delivered goods, the conditions of the corresponding
standard contracts for the upkeep of TEMPORE goods should be used. The
client knows all the conditions and all the conditions constitute the
main part of this contract.
1.2. Deviations from the conditions in clause 1.1. are only effective through a written confirmation from TEMPORE.
1.3. Should any provisions of this contract be invalid this
would not affect the validity of any of the other provisions in the
contract. If any provision is invalid, it will be replaced by a valid
provision which corresponds to the economic result of or is similar to
the invalid provision.
2. Conclusion of the contract
2.1. Offers of TEMPORE remain open.
2.2. Order and agreements are only legally binding, if confirmed in writing and validly signed by TEMPORE.
2.3. The contract can only be amended effectively in writing.
3. Prices and extra costs
3.1. Offer prices are only binding upon confirmation of the
order. Any agreed prices are only valid for the contract that is being
currently negotiated.
3.2. Unless otherwise agreed all prices from TEMPOREs office or
warehouse do not include VAT. The client must pay any extra fees, taxes
or other costs in connection with delivery. Transport costs for
delivery as well as the costs for transport insurance will be invoiced
separately. Delivery does not include unloading and carrying the goods.
The packaging will only be taken back on explicit agreement.
4. Delivery, fulfilment and transfer of risks
4.1. Delivery times will be kept to apart from in the case of
unforeseeable circumstances or circumstances that depend on the
parties, especially force majeure.
4.2. As long as the customer has not fulfilled all his technical
business and other conditions, or maid a payment due, or not made
security available, or obtained the necessary permission for the
delivery of the goods, the delivery time will be correspondingly
lengthened.
4.3. The customer is obliged, if no other delivery conditions
have been agreed, to confirm delivery in writing within fourteen days.
If no written confirmation is received within this time period by
TEMPORE, the product will be automatically considered as accepted.
4.4. If delivery on demand has been agreed, unless otherwise
agreed, the goods will be considered as demanded no later than one year
after the order.
4.5. For services, which do not form a delivery or part of a
delivery the contract is fulfilled in the place where the service was
carried out. The risk of complete service or part service is
transferred to the client on the provision of the services.
4.6. For deliveries or part deliveries the risk is transferred to the customer on his acceptance of the delivery or part delivery.
5. Payment
5.1. Payments made within 14 days of receipt of the invoice will
be with a 2 % reduction or in full within 30 days. Place and currency
upon agreement with TEMPORE. The acceptance of checks or bills of
exchange will be effected only for payment purposes. Any interest or
fees (e.g. withdrawal or bank fees) in connection with the payment will
be borne by the customer.
5.2. Regarding part-payments the corresponding part-payment must be paid immediately upon receipt of the invoice.
5.3. The customer does not have the right to demand a refund or
offset payments as a result of claims under the guarantee. A customer
is not allowed to hold back payments as long as any claim or
counter-claim is not based on the same contractual relationship. s. The
customer cannot offset counter-claims, unless these are undisputed or
are legally proven.
The contractual provisions in the general terms and conditions of
purchase and business of the client, which contain bans on assignment
and all other provisions on assigning claims are not considered agreed.
5.4. The day of payment is the day on which the money is received at the TEMPORE designated place of payment.
5.5. Should the customer be in arrears with agreed payments or
other duties, TEMPORE is able, without effecting their other rights, to
delay their obligations until receiving the late payments or
unfulfilled duties. TEMPORE can also demand a reasonable extension in
delivery times or demand the remaining payments due (missing
payment).once payment becomes due, TEMPORE can demand interest at 9 %
p.a. above 3 month EURIBOR plus VAT, as long as TEMPORE cannot proove
any other costs. TEMPORE can also rescind the contract despite an
extention in the deadline for payment and can demand damages and
pre-litigation costs, especially the costs of reminders and lawyers
fees.
6. Customers duties
6.1. The customer will provide TEMPORE with all information
without delay, which TEMPORE requires to provide services under the
contract.
6.2. The customer will name in good time contact partner, to
whom TEMPORE can provide binding information, who can make decisions or
can ensure they are made / acted on without delay.
6.3. In the case, that TEMPORE installs the system, the customer
wiIl make available, without cost, the necessary machines and service
personnel for the duration of the installation.
6.4. The customer is obliged to follow he respective service instructions.
6.5. The customer is obliged to inform TEMPORE immediately in
writing of any problems in the software program, to provide all
necessary information to solve the problem, and if necessary to make
its data processing system available.
7. Retention of title
7.1. TEMPORE retains title to all delivered goods, until they
have received full payment of the invoices plus interests and costs. As
security for payment, the customer is obliged to assign his claims from
on-sale of the goods in question to TEMPORE, even when the goods have
been worked on or developed. The customer is also obliged to enter a
corresponding note in its books and on its invoices abut the
assignment. On the demand of TEMPORE, the customer must inform TEMPORE
of the debtor and the assigned claim and make available all the
necessary information and documents to obtain the claim and tell their
debtor of the assigned claim. Should the customer pledge the goods or
if there are any other third party demands, the customer is obliged to
inform of TEMPORES ownership rights and also to immediately inform
TEMPORE.
7.2. The customer guarantees TEMPORE in case of payment arrears,
to still take the ordered goods thus keeping to the contract, and will
then sell them on and assign the monies received to TEMORE by way of
payment for their arrears.
8. IP and User Rights
8.1. The Customer is granted a non exclusive personal user right
for and right to operate the Software delivered by TEMPORE to the place
of business of the Customer. This right is not assignable and is only
for those licensed users.
8.2. TEMPORE reserves the right to all other rights in
connection with the Software that its he subject of this Agreement. The
Customer is permitted, without the consent of TEMPORE to reproduce, to
change or to merge the software with any other product. The Customer is
also not permitted to give the Software which its he subject of this
Agreement to a third party whether for consideration or not or, with
the exception of his operation staff, to give any other person access
to the Software without the written consent of TEMPORE.
8.3. TEMPORE reserves the right to change, develop or improve
the Software or to replace it with a newly developed function of the
same value.
8.4. The Customer will use all reasonable endeavours to ensure
that the confidentiality of the Software is maintained and to protect
it from misuse.
8.5. Even after this contract is terminated the Customer is only
permitted to allow access to the Software by persons not operating the
Software, with the previous written consent of TEMPORE.
8.6. All these provisions also apply to parts of the Software
that has been provided and thus these can only be used with limited as
described above.
8.7. Furthermore, the Customer is not permitted to reproduce,
change, counterfeit or merge the Hardware components with any other
product. Explanatory documents, for example, plans, sketches and other
technical documents remain the intellectual property of TEMPORE.
8.8. If one of the products delivered was made to construction,
drawing, model or other specifications of the Customer, the Customer
must not hold TEMPORE liable for any infringement of any property
rights.
9. Maintenance and Service
9.1. The Customer is obliged to conclude a maintenance contract
with TEMPORE. The maintenance contract contains constant updates of the
installed software, an extension of the length of the guarantee on the
Tempore Hardware to 24 months as well as the use of the Tempore Hotline
for 30 minutes a month.
9.2. The contract comments on the first of month of the
following month after installation. The maintenance contract is valid
until 31.12 of the following year after installation. The contract is
automatically renewed for a year i fit has not been terminated in
writing at least three months prior to its actual termination.
9.3. The costs and the payment conditions are regulated in the maintenance contract which is a part of this contract.
10.Warranty/Guarantee
10.1. TEMPORE warrants that the delivered products are ready for
operation at the time they are dispatched from the workshop/warehouse
or ready for dispatch. Further TEMPORE warrants that the product
description corresponds to the respective technical specifications that
were described. As far as hardware components TEMPORE guarantees that
they are free from construction and manufacturing defects and any
defects in the materials.
10.2. The warranty is valid for 12 months as long as no other
warranty period has been agreed for specific goods to be delivered.
This does not apply to any deliverable objects that can be connected to
a building or the ground. The warranty time period starts to run when
the risk has been transferred.
10.3. Exercising the warranty is conditional upon the fact that
the Customer has provided immediate written notice of the defects. He
must make available to the supplier all documents and information to
allow him to assess the defect and its causes. When there is a defect
that is covered by the warranty TEMPORE shall choose whether to replace
or improve, the defective goods and for repairs will ask for the goods
to be returned. The Customer has no right of a reduction in price or
rescission of the contract.
10.4. Defects that have not been caused through TEMPORE
putting together the goods or its inadequate configuration, its
ignorance of the installation requirements and the user guidelines and
the Customers overuse of the parts beyond the limits set by TEMPORE are
not covered by the warranty. This is also true for defects that arise
as a result of actions by third parties, atmospheric charges,
over-voltages or chemical influences. The warranty does not cover
replacing parts that naturally waste.
10.5. The warranty only applies to the Customer and not to third
parties to whom the goods may have been transferred. The warranty is
extinguished as soon as the Customer or an authorised third party makes
changes, restores or combines it with another product without the
written consent of TEMPORE. Invoices for the former will not be
accepted.
10.6. When defects are corrected the original length of the warranty is not extended.
10.7 The previous provisions are also valid for defects arising out of any other legal grounds.
10.8 Only defects that can be corrected can be claimed under the warranty.
11. Rescission Right
11.1. If TEMPORE exceeds an agreed delivery time through its own
fault for more than 30 days the Customer has the right to rescind the
contract if, after a further 90 days, if TEMPORE is so notified in
writing. Force majeure events such as labour conflicts, natural
disasters, and transport set backs free TEMPORE from its delivery
obligations or allow TEMPORE to re-set the delivery period. TEMPORE is
not liable for damages occurring from exceeding the delivery period.
11.2. Regardless of other rights TEMPORE has the right to
rescind if delivery becomes impossible or further delayed even after an
extension of the delivery period, or the beginning or continuance of
the services becomes impossible, all for reasons caused by the
customer. The same applies if TEMPORE has doubts as to the
creditworthiness of the Customer or that the Customer does not, at the
request of TEMPROE, put down a pre-payment or provide adequate security
before dispatch of the goods, or if the prolongation of the delivery
period due to the circumstances set forth in point 4 is for more that
half of the original delivery time and is at least 6 months.
11.3. You are able to partially rescind the contract for those
parts of delivery or service that have only been performed in part and
only with regards to the unperformed part.
11.4. In the case that insolvency proceedings over the assets of
one of the parties are initiated or an application for insolvency was
rejected due to insufficient assets, the other party has the right to
rescind from the contract without agreeing to an extension period
11.5. In the case of rescission, without prejudice to TEMPOREs
rights to damages, services and part services that have already been
provided will be invoiced and are to be paid. This is also the case
even if the customer did not take delivery of the goods or services and
for preparation work by TEMPORE. Instead of asking for payment TEMPORE
also has the right to ask fort he return of goods that have already
been delivered.
11.6. Other consequences from rescinded the contract are excluded..
12. Liability
12.1. TEMPORE is liable for damages outside the remit of the
Product Liability Act only as long as intention or gross negligence can
be proved according to law. Liability for simple negligence as well as
compensating for consequential loss, property damage, lack of savings,
loss of earnings, loss of interest and claims for third party damage is
excluded.
12.2. Damages arising from the Customer not keeping to the
installation, set-up , user instructions (eg the instructions for use),
or the official admission standards are excluded.
13. Assignment of rights
The Customer is not authorised to assign their rights under any
contract with TEMPORE to a third party without the prior written
authorisation of TEMPORE. ,
14. Confidentiality
The Customer is obliged to keep confidential any technical or business
information and documents received from TEMPORE or that he receives by
virtue of contractual relationship with TEMPORE. The Customer is also
obliged not to use the information outside of the contract and also to
ensure his workforce also keep to these restrictions. The duty of
confidentiality exists even after the contract is terminated.
15 Place of Contract, Governing Law and Jurisdiction
15.1. The place of contract is the business of TEMPORE.
15.2. The courts of Vienna will have exclusive jurisdiction.
15.3. The governing law is Austrian Law. Use of the UN Treaty on international goods contracts is amicably excluded.
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| Tempore Zeiterfassungssysteme GesmbH, A-1180 Wien |
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| Telefon +43 (1) 479 04 80, office@tempore.com |
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