General Terms and Conditions (GTC)
StreamUnlimited Optical Storage GmbH
As of April 2009
1. General, Contractual Scope and Validity
These general terms and conditions shall apply for the supply of all products and services by StreamUnlimited Optical Storage GmbH as the Contractor in the scope of the contract concluded with the Client. These terms and conditions as applicable shall also apply for all current and future supplies of products and services that the Contractor may undertake for the Client even if not referred to specifically at the time each individual contract is concluded. For the purposes of this contract and the entire business relation, the Client’s terms and conditions shall be excluded and shall not form any part of the contract. This shall apply even where the Contractor does not react upon correspondence of whatever kind received from the Client tied to the latter's terms and conditions.
2. Quote and Acceptance
Quotes given by the Contractor shall in principle be non-binding. The Contractor shall reserve the right to choose whether to accept or reject the Client's quotes. The Contract shall be concluded only when the Contractor accepts the Client’s order in writing, whereby the Contractor shall alternatively be entitled to conclude the contract conclusively simply by commencing supply of the products or services to be provided as per the quote.
3. Supply of Goods and Services, Client’s Duty of Collaboration
The Contractor shall have the right to engage third parties within or without Europe to supply products or services or parts thereof and/or to have these products or services supplied by third parties directly to the Client. The basis for the supply of products and services shall be the written job specification. Unless otherwise agreed, products and services as described in the respective job specification shall be supplied to the place of fulfillment, this within normal working hours, i.e. Monday to Friday from 9:00 am to 5:00 pm. Should the Client wish products and services to be supplied out side of normal office hours then any additional costs shall be charged separately. The Contractor shall be entitled to supply products in part and supply products and/or services in advance. The Client shall be obliged to make available all information, documentation and resources necessary to complete a timely supply of products and services and to support all measures the Contractor deems necessary for this (see also Point 5).
4. Acceptance, Transfer of Risk
The acceptance of the services and/or supply of products shall be confirmed by Client on the Approval Certificate (Confirmation of Acceptance) issued by the Contractor. Any defects shall be recorded in writing by the Client on this or reported in writing immediately (see also point 10), otherwise the products or services shall be considered to have been accepted free of all defects. The Client shall be obliged to examine all supplies of products as soon as possible and must report any possible defects in writing within a period of eight weeks after receipt giving details of said defects. The presence of minor defects shall not entitle the Client to refuse acceptance. Should the products or services supplied for the most part be viable, or should the Client use them, then they shall be deemed accepted. Risk shall be transferred to the Client upon acceptance of the products or services or upon hand-over for dispatch to a third party. Should the service due to the Client be made available via electronic data transfer or data availability at an access point (furthermore each of these two possibilities referred to as “DATA TRANSFER”), the service shall be completed at the point of DATA TRANSFER, which shall be verifiable. The time of the DATA TRANSFER shall be relevant.
5. Date of Completion
It shall only be possible to adhere to the deadline for completion if the Client fulfills its duty of collaboration. Delays that arise due to the conduct of the Client shall not be the responsibility of the Contractor. Any additional costs shall in that case be borne by the Client. The Client shall have neither the right to withdraw nor claim compensation for damages due to the intended deadline being overrun. In the case of long-term contracts and/or repeat services the Client shall be obliged to give a forecast in good time.
Unless otherwise agreed all prices under the job specification shall be ex works (place of fulfillment), in Euros and in case of doubt, shall be quoted as net. The costs for travel and transit time for other persons or third parties working on the contract shall be borne separately by the Client. Where the Client wishes services to be carried out at a place other than the place of fulfillment, the Client shall meet the additional cost of accommodation of personnel employed by the Contractor or third parties to carry out this service. The prices shall apply for the existing contract and – unless otherwise agreed – also for other products or services supplied or to be supplied by the Contractor in the scope of this business relationship. The costs of approbation and licensing shall be invoiced separately. Costs for intellectual property rights (in particular under Patent Act, Supplementary Protection Certificates Act , Protection of Inventions Act, Semiconductor Chip Protection Act, Copyright Act, etc.) that are necessary in order for the Contractor to supply the products or services, shall be invoiced separately and in cases of doubt, shall never form part of the agreed remuneration. Where increases in wage costs or costs of materials or other costs or expenses occur after the contract has been signed, the Contractor shall be entitled to increase the amounts listed in the job specification accordingly and charge these to the Client as from the beginning of the month following any increase.
7. Conditions of Payment
Unless otherwise agreed all goods and services supplied by the Contractor must be paid in advance. The invoices submitted by the Contractor must be paid in full and free of all charges to the account indicated in the invoice within 14 days. The Client shall not be entitled to offset for whatever reason against claims made by the Client. Any valid claims made (in particular due to default or warranty) shall not free the Client from any payment obligations. The Client shall not be entitled to withhold payment due on the grounds of poor quality of service. The interest rates in the case of arrears of payment shall be 12% per annum.
8. Retention of Title
Should a period of grace be allowed for payment, then the products supplied and services performed shall remain the property of the Contractor until payment in full of the purchase price and/or wages, including any possible interest incurred through payment arrears and operating costs.
9. Copyright and Use
The Contractor or the Contractor's licensors shall be entitled to all intellectual property rights vis-a-vis the services performed and/or products supplied. The Client shall have the right solely to use the services and/or products supplied in accordance with the terms of the contract after payment in full. The Client shall only acquire a user authorization. Should protected software or intellectual property rights be passed to the Client in whatever form, the Client shall be responsible for ensuring its use in accordance with the user authorization transferred, and shall indemnify and hold the Contractor harmless against all claims whatsoever made by third parties. The Contractor shall have the sole right to patents etc. it discovers during or as a result of performing services. The Contractor shall as a rule not be tasked with producing a new invention. The Client must never pass on source codes without Contractor’s permission.
10. Compensation for Damages and Warranty
The Contractor shall be liable for damages only in case of gross negligence. Unless otherwise required by legislation, compensation for consequential damages, costs of idleness, financial losses, lost profits, missed opportunities for savings, loss of interest or for damage claims against the Client from third parties shall be excluded in all cases. In the case of loss of data the Contractor shall be liable only if the Client can verify that it has secured the data on a regular basis and in any case at least once a day. Apart from that, liability shall be excluded except in the case of malicious intent. Claims for compensation for damages must be made within a time limit of three months of discovery of the defects and the liable party. In any case, Claims for compensation for damages shall become absolutely time-barred 2 (two) years after the performance of the service.
Warranty shall be excluded with the exception of the defects listed under Point 4 in the Approval Certificate (Confirmation of Acceptance). For the defects listed in the Approval Certificate the following shall apply: The duration of warranty shall be 3 months from acceptance. In the case of warranty the Client shall have the right to rectification only. The right to conversion or price reduction is excluded. The Contractor shall have the option to replace defective products or services with new ones. Rectification of defects shall take place at the place of fulfillment. The Contractor shall not assume any liability for faults, disruptions or damages caused by inappropriate use by the Client, for faults arising as a result of alterations to the service provided that are carried out by the Client, unsuitable organizational aids and storage media, or for damages in transit.
11. Non-Assignment Clause
Claims against the Contractor shall be non-transferable and non-assignable.
12. Place of Fulfillment
Unless otherwise agreed the place of fulfillment shall be the Contractor’s office in Vienna.
13. Data Protection
The Client shall be obliged to use the software manufactured by the Contractor solely in accordance with the respective data protection provisions applicable for the Client. In this respect the Client shall indemnify and hold the Contractor harmless against claims made by third parties.
14. German Version
In case of discrepancies between the German and the English version of these terms and conditions the German version shall prevail.
15. Applicable Law and Court of Jurisdiction
All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled by the court with jurisdiction for commercial matters in Vienna. Austrian law shall apply with the exception of its conflict of Law rules and the United Nations Convention on Contracts for the International Sale of Goods.