General Terms and Conditions of Business (GTC)
The following GTC of ALTUROS consist of 2 different sections (Part I and Part II) as follows:
Part I General Terms and Conditions of Business (GTC)
For the sale and delivery of equipment
of Alturos AG, Alturos Destinations AG, Alturos Destinations GmbH and Alturos Destinations SAS
(hereafter „ALTUROS“)
Version: 01.11.2019
Part II General Terms and Conditions of Business (GTC)
For the sale and supply of organization and programming services and authorizations to use software products as protected works
of Alturos AG, Alturos Destinations AG, Alturos Destinations GmbH and Alturos Destinations SAS
(hereafter „ALTUROS“)
Version: 01.11.2019
Part I General Terms and Conditions of Business (GTC)
For the sale and delivery of equipment
of Alturos AG, Alturos Destinations AG, Alturos Destinations GmbH and Alturos Destinations SAS
(hereafter „ALTUROS“)
Version: 01.11.2019
1. Validity
1.1 These Terms and Conditions of Business shall apply between ALTUROS and any natural person or legal entity (hereafter CUSTOMER) for the relevant business-related transaction and also for all future transactions, even if they are not expressly referred to on each individual occasion, in particular on the occasion of future supplementary or follow-up orders.
1.2 The relevant up-to-date version of the GTC valid upon conclusion of the contract shall apply under all circumstances.
1.3 ALTUROS concludes contracts on the basis of the current version of the General Terms and Conditions.
1.4 Any terms and conditions of business of the CUSTOMER or any amendments or supplements to the ALTUROS GTC shall only be valid if expressly approved by ALTUROS in writing.
1.5 All orders and agreements shall only be binding if they are countersigned by ALTUROS in writing by an authorised signatory and shall only establish obligations to the extent indicated in the order confirmation. It is hereby stipulated that any terms and conditions of purchase of the CUSTOMER shall not apply to the present transaction, and thus to the overall business relationship.
2. Offers
2.1 Offers are subject to confirmation.
2.2 Any commitments, assurances, or guarantees provided by ALTUROS or any agreements made in relation to the conclusion of a contract that depart from these GTC shall only become binding upon confirmation in writing by ALTUROS.
2.3 Any information concerning our products and services contained in catalogues, price lists, prospectuses, adverts at trade fair stands, circulars, advertising material, or on other media (information material) that is not attributable to ALTUROS must be presented to ALTUROS by the CUSTOMER if the CUSTOMER bases a decision to place an order on such material. In this case ALTUROS may make a statement on their correctness. If the CUSTOMER breaches this requirement, any such information shall not be binding, unless it is expressly incorporated into the contract in writing.
3. CUSTOMER’s obligation to cooperate
3.1 The obligation of ALTUROS to perform shall commence no earlier than the point in time when all technical details have been clarified, the CUSTOMER has established the technical and legal prerequisites—which ALTUROS shall be pleased to provide on request—ALTUROS has received the agreed down payments or security deposits and the CUSTOMER has fulfilled its contractual obligations to perform in advance and to cooperate, in particular also the obligations mentioned in the sub-sections below.
3.2 In the case of installations to be carried out by ALTUROS, the CUSTOMER is obligated to ensure that the work can be started as soon as possible after arrival of the installation personnel.
3.3 The CUSTOMER is obligated to store the goods properly in locked rooms until installation.
3.4 The CUSTOMER shall arrange at its own expense for the necessary authorisations and permits from third parties as well as notifications and authorisations from authorities.
3.5 The costs for the delivery of the goods to the installation site shall be borne by the CUSTOMER.
3.6 The energy and infrastructure required for the performance of the service, including installation and trial operation, shall be provided by the CUSTOMER at its own expense.
3.7 The CUSTOMER shall provide ALTUROS free of charge with lockable rooms inaccessible to third parties for the workers’ stay and for the storage of tools and materials for the period of performance of the services.
3.8 The CUSTOMER shall be liable for ensuring that the necessary structural, technical and legal requirements are met for the work to be produced or the items purchased. This includes services described in the contract or in the information provided to the CUSTOMER or which the CUSTOMER should have known due to relevant expertise or experience.
3.9 The CUSTOMER shall also be liable for ensuring that the technical infrastructure, such as supply lines, wiring, networks and the like are to be in a technically faultless and operational condition and compatible with the items purchased or works to be performed by ALTUROS. ALTUROS is entitled, but not obligated, to inspect these installations for a separate fee.
3.10 The CUSTOMER shall provide the necessary information on the location of concealed power, gas and water lines or similar installations, escape routes, other obstacles of a structural nature, possible sources of danger as well as the necessary structural information without being requested to do so prior to commencement of the installation work.
3.11 Order-specific details of information required can be requested from ALTUROS.
3.12 The CUSTOMER is solely responsible for the construction and operability of parts provided as well as for the necessary infrastructural facilities—including foundations and pipelines. There is no obligation to inspect any documents, information or instructions provided by the CUSTOMER with regard to the object of delivery. ALTUROS accepts no liability in this respect. Such liability shall in particular also be excluded if ALTUROS anchors the installation at the CUSTOMER’s request. The final selection of the anchors used for anchoring the installation is the responsibility of the CUSTOMER.
3.13 The CUSTOMER is not entitled to assign claims and rights arising from the contractual relationship without the written consent of ALTUROS.
4. Transport regulations; delivery and performance deadlines
4.1 Delivery/performance periods and dates are only binding for ALTUROS if they have been specified in writing. Any departure from this formal requirement must also be in writing.
4.2 Unless otherwise agreed, the agreed services shall be performed in a manner customary in the industry as determined by ALTUROS and within the normal working hours of ALTUROS. If services are rendered outside these times, the additional costs shall be invoiced separately. ALTUROS shall be responsible for selecting the persons who provide the service, and third parties may also be called upon for this purpose.
4.3 For transport service, ALTUROS shall commission an appropriate transport service provider (carrier) to transport the goods. ALTUROS is responsible for obtaining the correct export customs clearance from the European Union. The CUSTOMER is responsible for import customs clearance in the country of destination, with the exception of Switzerland, for which ALTUROS is responsible. The CUSTOMER is obligated to inform ALTUROS of its customs duty account number when concluding the contract. In the case of “Selbstverzollung” (customs clearance under own responsibility), the CUSTOMER shall inform ALTUROS of the customs office for importing the goods when concluding the contract.
4.4 Unless otherwise agreed in writing in individual cases, the international trade clauses (Incoterms) are defined as FCA—”Free on Carrier”, from Klagenfurt, Austria. In the case of deliveries to Switzerland, FCA— “Free on Carrier” shall apply from the Austrian border unless otherwise agreed in writing in individual cases. The risk shall pass to the CUSTOMER when the delivery item is handed over to the forwarder. The Incoterms as amended in 2010 shall apply. These transport regulations are based on the current version of the General Austrian Forwarders’ Terms and Conditions (AÖSp).
4.5 If delivery on call has been agreed, the service/purchase item shall be deemed to have been called off in the case of delivery ex works no later than six months after the order has been placed.
4.6 Delivery shall be made at the CUSTOMER’s expense and risk, unless otherwise agreed. Special packaging shall be charged to the CUSTOMER. As a rule, ALTUROS insures the transport. This covers real damage resulting from theft, loss or damage to the goods. If the CUSTOMER does not wish ALTUROS to take out transport insurance, the CUSTOMER must inform ALTUROS. In this case the CUSTOMER shall be liable for any damage resulting from the transport. The transport insurance does not cover pecuniary loss, damage due to idle times, damage due to delay or other.
4.7 If ALTUROS has agreed to a return of goods on an exceptional basis, a credit note shall only be issued after deduction of a processing fee and any frustrated expenses.
4.8 The delivery address provided by the CUSTOMER shall be the place where the goods are unloaded. If the CUSTOMER has not provided a delivery address, ALTUROS will deliver the goods to the address of the CUSTOMER’s registered office. As a rule, delivery takes place by semi-trailer truck with a length of 13.6 metres. The CUSTOMER shall ensure that the unloading point is accessible for such a semi-trailer truck. If the place of delivery is not accessible with a heavy truck, the CUSTOMER shall be liable according to the valid AÖSp.
4.9 Delivery and performance obligations as well as delivery and performance periods shall be suspended as long as the CUSTOMER is in arrears with payments or fails to take any action necessary to fulfil the order.
4.10 ALTUROS is entitled to carry out development or production-related partial or advance deliveries or services and to invoice them separately.
4.11 In the course of the assignment, the CUSTOMER shall provide ALTUROS with the contact information of two persons (name, telephone number, e-mail address) who are responsible on the part of the CUSTOMER for handling the delivery. This contact information shall be passed on to the forwarding agent for the purpose of coordinating the delivery. This person/these people must be available by telephone on the day of delivery. The working language between the CUSTOMER and the carrier shall be English or German.
4.12 The latest possible delivery date shall be coordinated and agreed between ALTUROS and the CUSTOMER. The goods must be unloaded within a reasonable period of time. The AÖSp shall apply.
4.13 The CUSTOMER is obligated to inspect the goods upon acceptance to confirm the number of packages and check for obvious external damage. Missing packages and any damage must be noted on the CMR during transfer. The CUSTOMER has 5 days after receipt of the goods to inspect the goods for hidden defects. After expiry of this claim period, the goods shall be deemed to have been accepted. Any damage or missing packages discovered subsequently will not be accepted by ALTUROS, in accordance with the provisions of the AÖSp.
4.14 In the event of force majeure (including bad weather), strike, war, mobilisation, lockout, or the occurrence of unforeseeable events, as well as due to unforeseeable delays by suppliers for which ALTUROS is not responsible or other comparable events beyond the control of ALTUROS, deadlines and dates shall be postponed by the duration of the respective event. This shall not affect the CUSTOMER’s right to withdraw from the contract in the event of delays which make it unreasonable to be bound by the contract.
4.15 If the commencement of performance or the performance itself are delayed or interrupted due to circumstances attributable to CUSTOMER, in particular due to the breach of the duties to cooperate listed in Section 3, the performance periods shall be extended accordingly and completion deadlines postponed accordingly. ALTUROS is entitled to invoice any expenses for the longer storage of materials and equipment and similar expenses incurred as a result of this delay, but the CUSTOMER’s obligation to pay as well as its obligation to accept delivery shall remain unaffected. This obligation of the CUSTOMER shall also apply in the event of delayed acceptance by the CUSTOMER
5. Provided goods
5.1 If devices or other materials are provided by the CUSTOMER, ALTUROS shall be entitled to charge the CUSTOMER up to 25% of the value of the devices or materials provided as a handling surcharge.
5.2 Such devices and other materials provided by the CUSTOMER are not subject to warranty. The CUSTOMER is responsible for the quality and operational readiness of the materials provided. – see also Section 16. Warranty. In the event that any customer-provided materials have an effect on components supplied by ALTUROS, ALTUROS shall be entitled to reduce or suspend its warranty for the affected components.
6. Performance of services, changes to services
6.1 ALTUROS shall only be obligated to consider subsequent requests for changes and extensions by the CUSTOMER if they are necessary for technical reasons in order to achieve the purpose of the contract. A written agreement between the contracting parties is necessary for such changes.
6.2 Minor changes to the services to be performed which are reasonable and objectively justified for the CUSTOMER shall be deemed to have been approved in advance.
6.3 If the order is modified or supplemented for any reason whatsoever after placement, the delivery/performance period shall be extended by a reasonable period of time.
6.4 If the CUSTOMER requests performance within a shorter period after conclusion of the contract, this shall constitute an amendment to the contract. This may result in overtime and/or additional costs due to the acceleration of material procurement. The fee shall thus be increased appropriately in proportion to the additional cost and effort required.
7. Prices
7.1 Price quotations are generally not to be understood as flat rate prices.
7.2 Services ordered by the CUSTOMER which are not covered by the original order shall be subject to appropriate remuneration in the absence of an agreement on remuneration for work and services.
7.3 Prices are quoted exclusive of the statutory value added tax applicable at the time and ex warehouse or ex handover to the carrier. Packaging, transport, loading and shipping costs as well as customs duties or customs clearance and insurance shall be borne by the CUSTOMER. ALTUROS is only obligated to take back packaging if expressly agreed.
7.4 The CUSTOMER shall arrange for the professional and environmentally sound disposal of used material and/or packaging and waste from assembly. If ALTUROS is separately commissioned to do so, the CUSTOMER shall additionally pay appropriate remuneration to the extent agreed for this purpose, in the absence of a remuneration agreement.
7.5 ALTUROS shall be entitled to adjust the contractually agreed fees if changes have occurred since conclusion of the contract that amount to at least 5% with regard to wage costs by law, regulation, collective agreement, works agreements or other cost factors necessary for the provision of services, such as procurement costs of the materials to be used on the basis of recommendations of the Joint Commissions or changes in national or world market prices for raw materials, exchange rates, etc. This adjustment shall be made to the extent that the actual production costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided ALTUROS is not in default. Notice of the increase shall be given by ALTUROS to the CUSTOMER along with corresponding documentation.
7.6 It is agreed that fees under ongoing payment obligations shall be adjusted in line with the European Harmonised Index of Consumer Prices (HICP). The baseline figure shall be that for the month during which the contract was concluded.
7.7 Travel expenses shall be billed separately to the CUSTOMER. Travelling time shall be deemed to constitute working time.
8. Payment
8.1 50% of the fee is due upon conclusion of the contract, 30% upon delivery and the remainder after completion of the service. Invoices issued by ALTUROS, which shall include value added tax, shall be payable within 14 days of receipt of the invoice without any deduction and with any charges paid. The payment terms stipulated for the overall order shall apply mutatis mutandis to partial invoices.
8.2 Any entitlement to deduct a discount must be expressly agreed to in writing.
8.3 Any payment references provided by the CUSTOMER on bank transfer documentation shall not be binding.
8.4 The CUSTOMER shall not be entitled to withhold payment on the grounds that the overall delivery has not been completed, or with reference to guarantee claims, warranty claims or defects.
8.5 In the event of any payment default by the CUSTOMER under other contractual relationships with ALTUROS, ALTUROS shall be entitled to suspend compliance with obligations under this contract until performance by the CUSTOMER. All related costs, including forgone profit, shall be borne by the CUSTOMER. In the event of any payment default, ALTUROS shall also be entitled to demand immediate payment of all amounts outstanding in respect of services already provided under the ongoing business relationship with the CUSTOMER.
8.6 In the event of payment default by the CUSTOMER towards ALTUROS under individual contracts concerning services and supplies, ALTUROS shall be entitled to suspend compliance with its obligations under the relevant contract.
8.7 If a payment deadline is not respected, even if only in relation to an individual instance of partial performance, any beneficial terms (rebates, discounts, etc.) shall be forfeit and shall be imputed to the invoice.
8.8 The CUSTOMER undertakes in the event of payment default to compensate ALTUROS for any necessary and appropriate debt recovery costs (reminder fees, collection charges, lawyers’ fees, etc.).
8.9 ALTUROS shall be entitled to charge default interest at the rate of 8.0% p.a. in the event of default of payment by the CUSTOMER.
9. Credit check
9.1 The CUSTOMER expressly accepts that its data may be transmitted to the state-accredited creditor protection association exclusively for creditor protection purposes.
10. Right of withdrawal
10.1 In the event that an agreed delivery deadline is not respected due to the sole fault of or to any unlawful act on the part of ALTUROS, the CUSTOMER shall be entitled to cancel the order concerned by registered letter if the agreed performance is not effected in its essential components prior to the expiry of a reasonable grace period, unless the CUSTOMER was responsible for the failure to perform.
10.2 ALTUROS shall be released from its obligation to deliver or shall be entitled to establish a new delivery period in the event of force majeure, industrial disputes, natural disasters and transport stoppages or any other circumstances beyond the control of ALTUROS.
10.3 Cancellation by the CUSTOMER shall only be permitted with the written approval of ALTUROS. If ALTUROS accepts a cancellation, it shall be entitled to charge a cancellation fee of 30% of the value of the overall product that has not yet been billed, in addition to charging for services already rendered and any costs incurred.
11. Delay in acceptance and refusal of acceptance
11.1 If the CUSTOMER delays acceptance for a period of more than 2 weeks (refusal of acceptance, no call-off within a reasonable period of time in case of order on call-off), and the CUSTOMER has not remedied the circumstances attributable to it which delay or prevent the performance of the service despite the setting of a reasonable grace period, ALTUROS may otherwise dispose of the equipment and materials specified for the performance of the service in the case of a valid contract, provided that such equipment and materials are procured subsequently within a period of time appropriate to the respective circumstances in case of continuation of the performance of the service. Any additional costs incurred in the course of subsequent procurement shall be borne by the CUSTOMER.
11.2 In the event of default in acceptance of goods ready for operation, the CUSTOMER shall be invoiced for storage and interest costs.
11.3 If acceptance is refused, ALTUROS shall additionally be entitled to invoice or withhold any agreed down payment, but at least 15% of the purchase price, as a contractual penalty. This amount shall also be deemed to be the minimum loss for non-performance.
12. Retention of title
12.1 The goods delivered, assembled or otherwise handed over by ALTUROS shall remain the property of ALTUROS until full payment has been made.
12.2 The resale of goods subject to retention of title shall only be permitted if ALTUROS has been notified in good time in advance, stating the name and exact address of the purchaser, and ALTUROS has agreed to the resale. In the event of approval, the purchase price claim shall be immediately assigned to ALTUROS.
12.3 The CUSTOMER shall note this assignment in its books and on its invoices until full payment of the remuneration or purchase price has been made and shall draw the attention of its respective debtors to this assignment. Upon request, it shall provide ALTUROS with all documents and information required to assert the assigned claims and demands.
12.4 If the CUSTOMER defaults on payment, ALTUROS shall be entitled, after setting a reasonable grace period, to demand the return of the goods subject to retention of title. The CUSTOMER has a duty to cooperate to the extent that it must make the goods available at the place of delivery at the time.
12.5 The CUSTOMER shall notify ALTUROS immediately prior to the opening of bankruptcy proceedings against its assets or the seizure of the goods subject to retention of title.
12.6 The CUSTOMER expressly agrees that ALTUROS may enter the location of the reserved goods in order to assert the retention of title.
12.7 The CUSTOMER shall bear the costs necessary and reasonable for the appropriate prosecution.
12.8 The assertion of retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.9 ALTUROS may dispose of the returned goods subject to retention of title freely and in the best possible way.
12.10 Until all claims have been paid in full, the object of performance or purchase may not be pledged, assigned by way of security or otherwise encumbered with the rights of third parties.
13. Third-party property rights
13.1 The CUSTOMER shall be solely responsible for ensuring that the production of the delivery items does not infringe the industrial property rights of third parties in respect of delivery items manufactured in accordance with customer documents (design data, drawings, models or other specifications, etc.).
13.2 If industrial property rights of third parties are nevertheless asserted, ALTUROS shall be entitled to discontinue the manufacture of the delivery items at CUSTOMER’s risk until the rights of third parties have been clarified, unless the claims are manifestly unjustified.
13.3 The CUSTOMER shall indemnify and hold ALTUROS harmless in this respect.
13.4 ALTUROS shall be entitled to demand from the CUSTOMER reasonable advance payments for any litigation costs.
13.5 ALTUROS may also demand compensation from the CUSTOMER for any expenses incurred, necessary and useful.
14. Intellectual property
14.1 Delivery items and related execution documents, plans, sketches, cost estimates and other documents as well as software provided or created by ALTUROS shall remain the intellectual property of ALTUROS.
14.2 Their use, in particular their passing on, duplication, publication and making available, including copying even in excerpts, as well as their imitation, processing or exploitation requires the express consent of ALTUROS.
14.3 The CUSTOMER undertakes to maintain secrecy vis-à-vis third parties with regard to the information received from the business relationship.
15. Warranty
15.1 The warranty period for the services of ALTUROS is 6 months from the date of delivery.
15.2 Unless otherwise agreed (for example by formal acceptance), the time of handover shall be the time of completion, at the latest when the CUSTOMER has taken over the service under its power of disposal or has refused to take it over without stating reasons. On the day on which the CUSTOMER is notified of completion, the service shall be deemed to have been taken over by the CUSTOMER in the absence of a justified refusal to accept it.
15.3 If a joint handover is planned and the CUSTOMER fails to comply with the handover date communicated to it, the handover shall be deemed to have taken place on that day.
15.4 Remedies of a defect alleged by the CUSTOMER do not constitute acknowledgement of a defect.
15.5 The CUSTOMER must always prove that the defect was already present at the time of delivery.
15.6 In order to remedy defects, the CUSTOMER shall make the plant or the equipment accessible without culpable delay and shall give ALTUROS the opportunity to inspect it—either itself or by an expert appointed by ALTUROS.
15.7 Notices of defects and complaints of any kind are to be submitted without delay, otherwise the warranty claims will be void—at the latest after 5 working days—at ALTUROS’ registered office, with as precise a description of the defect as possible and an indication of the possible causes. The goods or works complained of shall be handed over by the CUSTOMER, insofar as this is possible for the CUSTOMER.
15.8 If CUSTOMER’s claims for defects are unjustified, CUSTOMER shall be obligated to reimburse ALTUROS for any expenses incurred in remedying the defect or in determining whether the goods are free of defects.
15.9 Any use or processing of the defective delivery item which threatens to cause further damage or makes it more difficult or impossible to remedy the cause shall be stopped by the CUSTOMER immediately, unless this is unreasonable.
15.10 ALTUROS shall be entitled to carry out or have carried out any inspection deemed necessary, even if this makes the goods or workpieces unusable. In the event that this investigation shows that ALTUROS is not responsible for any errors, the CUSTOMER shall bear the costs of this investigation against reasonable payment.
15.11 Transport and travel costs incurred in connection with the rectification of defects shall be borne by the CUSTOMER. Upon request, the CUSTOMER shall provide the necessary manpower, energy and rooms free of charge and shall cooperate in accordance with Section 3.
15.12 ALTUROS shall be granted at least two attempts by the CUSTOMER to remedy the defect.
15.13 ALTUROS may avert a conversion request by correction or appropriate price reduction, provided that the defect is not a material defect which cannot be remedied.
15.14 If the performance objects are manufactured on the basis of information, drawings, plans, models or other specifications of the CUSTOMER, ALTUROS shall only warrant that they are executed in accordance with the conditions.
15.15 The fact that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on actual circumstances deviating from the information available to ALTUROS at the time of performance of the service because the CUSTOMER failed to fulfil its obligations to cooperate in accordance with Section 3.
15.16 Likewise, it shall not constitute a defect if the CUSTOMER’s technical systems, such as supply lines, cabling, networks, etc., are not in a technically faultless and operational condition or are not compatible with the delivered items.
16. Liability
16.1 ALTUROS shall only be liable for financial losses due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., in cases of intent or gross negligence based on technical particulars.
16.2 Liability shall be limited to the order value of the underlying contract.
16.3 This limitation shall also apply to damage to an object which ALTUROS has taken over for processing.
16.4 Claims for damages shall be asserted in court within one year, otherwise they shall expire.
16.5 ALTUROS shall not be liable for damage caused by improper handling or incorrect storage, overloading, failure to comply with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the CUSTOMER or third parties not authorised by ALTUROS or natural wear and tear, provided that this event was a cause of the damage. Liability exclusion also applies in case of omission of necessary maintenance.
16.6 If and to the extent that the CUSTOMER is entitled to claim insurance benefits for damages for which ALTUROS is liable through the CUSTOMER’s own damage insurance or insurance taken out in its favour (e.g. liability, transport, fire, interruption of operations, etc.), the CUSTOMER undertakes to claim insurance benefits and ALTUROS’s liability vis-à-vis the CUSTOMER shall be limited to the disadvantages incurred by the CUSTOMER as a result of such claims, such as higher insurance premiums.
16.7 Those product characteristics are owed which, with regard to the approval regulations, operating instructions and other product-related instructions and notes—in particular also inspection and maintenance—can be expected from ALTUROS, third party manufacturers or importers by the CUSTOMER with regard to the approval regulations, operating instructions and other product-related instructions and notes, taking into account the CUSTOMER’s knowledge and experience.
17. Data protection, confidentiality
17.1 ALTUROS shall oblige its staff to comply with the relevant applicable data protection law.
18. Severability
18.1 Should any individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
18.2 The parties hereby undertake to adopt a replacement provision—acting in accordance with the dictates of good faith—which comes as close as possible to the economic result of the invalid term, taking account of standard industry practice.
19. General
19.1 The law of the country in which the registered office of ALTUROS is situated shall apply.
19.2 The UN Convention on Contracts for the International Sale of Goods shall not apply.
19.3 The courts with competence ratione loci over ALTUROS shall have jurisdiction over all disputes arising out of the contractual relationship or future contracts between ALTUROS and the CUSTOMER.
19.4 The CUSTOMER shall inform ALTUROS promptly in writing of any changes to its name, company name, address, legal status or other relevant information.
Part II General Terms and Conditions of Business (GTC)
For the sale and supply of organization and programming services and authorizations to use software products as protected works
of Alturos AG, Alturos Destinations AG, Alturos Destinations GmbH and Alturos Destinations SAS
(hereafter „ALTUROS“)
Version: 01.11.2019
1. Validity
1.1 These Terms and Conditions of Business shall apply between ALTUROS and any natural or legal person (hereafter CUSTOMER) in relation to the relevant business-related transaction and also to all future transactions, even if they are not expressly referred to on each individual occasion, in particular on the occasion of future supplementary or follow-up orders.
1.2 The relevant up-to-date version of our GTC valid upon conclusion of the contract shall apply under all circumstances.
1.3 We conclude contracts on the basis of our GTC.
1.4 Any terms and conditions of business of the customer or any amendments or supplements to our GTC shall only be valid if expressly approved by us in writing.
1.5 All orders and agreements shall only be binding if they are countersigned by ALTUROS in writing by an authorised signatory and shall only establish obligations to the extent indicated in the order confirmation. It is hereby stipulated that any terms and conditions of purchase of the CUSTOMER shall not apply to the present transaction, and thus to the overall business relationship.
2. Offers
2.1 Our offers are subject to confirmation.
2.2 Any commitments, assurances, or guarantees provided by us or any agreements made in relation to the conclusion of a contract that depart from these GTC shall only become binding upon confirmation in writing by us.
2.3 Any information concerning our products and services contained in catalogues, price lists, prospectuses, adverts at trade fair stands, circulars, advertising material, or on other media (information material) that is not attributable to us must be presented to us by the CUSTOMER if the CUSTOMER bases his/her/its decision to place an order on such material. This will enable us to establish whether the information is accurate. If the CUSTOMER breaches this requirement, any such information shall not be binding, unless it is expressly incorporated into the contract in writing.
3. Performance and acceptance
3.1 An order may relate to:
- the development of organisational concepts
- analyses of customer requirements
- the creation or adjustment of software in line with customer requirements
- the acquisition of rights to use software products
- the acquisition of authorisations to use protected works
- consultancy services in relation to the commissioning or configuration of and the provision of training in relation to software
- software maintenance services
- 1st, 2nd, and 3rd level support services
- professional services
- other services
3.2 Individual organisational concepts and programs shall be developed based on the nature and scope of the complete information, documentation, and auxiliary material made available by the CUSTOMER. This shall also include sufficient workable test data and testing opportunities, which the CUSTOMER shall provide promptly, during normal working hours and at his/her/its own cost. If any systems made available by the CUSTOMER for testing are already conducting live operations, the CUSTOMER shall be responsible for backing up any real data.
3.3 If the software provided by ALTUROS is being used by the CUSTOMER in conjunction with third party software, the CUSTOMER shall be liable for all costs arising for ALTUROS in the event that the third party software does not perform in accordance with the pre-defined rules. The CUSTOMER undertakes towards ALTUROS to ensure that the third party software is properly maintained and that any errors arising, including in particular any errors arising in relation to interaction with the ALTUROS software, are promptly rectified.
3.4 Individual programs shall be created on the basis of the written service description, which ALTUROS shall develop and present to the CUSTOMER for a fee based on the documentation and information made available to it. The CUSTOMER shall examine this service description in order to ensure that it is accurate and complete, and shall mark it with his/her/its approval. Any changes subsequently requested may require specific agreements regarding deadlines or prices.
3.5 If any adaptations to software or programs are generated individually, the program package concerned must be accepted by the CUSTOMER within no later than four weeks after delivery. This shall be confirmed by the CUSTOMER in a report. (Check of accuracy and completeness with reference to the service description accepted by ALTUROS using the test data provided in accordance with clause 6.2.). In the event that the CUSTOMER fails to accept the program within four weeks, the software delivered shall be deemed to have been accepted as of the expiry of the period in question. If the software is used for live operations by the CUSTOMER, it shall in any case be deemed to have been accepted. Any errors arising, i.e. inconsistencies with the service description agreed to in writing, shall be sufficiently documented and reported by the CUSTOMER to ALTUROS, which shall endeavour to rectify the errors as quickly as possible. In the event that any material errors are reported in writing, i.e. such that live operation cannot be commenced or continued, renewed acceptance shall be required after the error has been rectified.
3.6 The CUSTOMER shall not be entitled to refuse to accept the software on the basis of non-material errors.
3.7 If a standard program is ordered, in placing the order the CUSTOMER acknowledges the performance range of the program ordered.
3.8 Should it transpire during the course of work that order execution in accordance with the service description is impossible either as a matter of fact or due to legal requirements, ALTUROS shall be obliged to report this fact immediately to the CUSTOMER. If the CUSTOMER fails to alter the service description in order to resolve the matter or to fulfil the prerequisites for necessary for execution, ALTUROS may refuse to execute the order. If the fact that it is impossible to execute the order results from a shortcoming on the part of the CUSTOMER or an ex post change to the service description by the CUSTOMER, ALTUROS shall be entitled to cancel the order. The costs and expenses relating to any work performed by ALTUROS until that time along with any dismantling and consequential costs shall be reimbursed by the CUSTOMER.
3.9 Program media, documentation, and service descriptions shall be dispatched at the cost and risk of the CUSTOMER. Any additional training or declarations requested by the CUSTOMER shall be invoiced separately. Insurance shall be provided only at the request of the CUSTOMER.
3.10 ALTUROS expressly notes that barrier-free configuration (of websites) ensuring equal treatment for persons with a disability is not included in the offer, unless this has been requested specifically or individually by the CUSTOMER. If barrier-free configuration has not been agreed to, it shall be for the CUSTOMER to examine the service in order to establish whether it is acceptable with reference to any barrier-free configuration required by law. The CUSTOMER shall also inspect any content provided by him/her/it in order to ensure that it is compliant with the law, including in particular competition law, trade mark law, and administrative law. ALTUROS shall not incur liability on the grounds that the content is unlawful in the event of minor negligence on its part or where it has complied with any duty to warn the Customer, if so stipulated by the CUSTOMER.
4. Request for Change
4.1 Any changes to the contractual scope of performance by ALTUROS (accepted service description) must be stipulated in writing. Otherwise, the change shall not be deemed to be valid.
4.2 The CUSTOMER must inform ALTUROS in writing of any desired changes.
4.3 ALTUROS shall examine any implications that the desired changes may have with regard to the service description, additional costs, and deadlines and shall inform the CUSTOMER of these in writing. The contractual parties shall discuss the implementation of the requested changes and any implications.
4.4 If they are able to reach agreement, the requested change shall be documented in writing and appended to the service description as an annex. ALTUROS shall inform the CUSTOMER in writing of the implications, such as e.g. changes to deadlines, content, and costs.
4.5 If they are unable to reach agreement or if the CUSTOMER withdraws the requested change, the performance range shall be that originally stipulated.
5. Prices
5.1 Unless specified otherwise, all prices are indicated in euros without value added or sales tax, and are not in principle intended as all-in prices. They are only valid for the corresponding order. The prices indicated are valid ex works from the place of business or facility of ALTUROS. The costs of program media and of any contractual charges shall be billed separately.
5.2 Standard programs shall be sold at the list prices applicable at the time of delivery. For all other services (organisational consulting, programming, induction, migration support, telephone advice, support, professional services, etc.) shall be charged by the hour according to the rates applicable at the time the relevant service is provided.
5.3 ALTUROS shall be entitled to adjust the remuneration agreed to under contract in the event of any increase in salary costs following the conclusion of the contract by 5% or more according to the provisions of any legislation, regulations, or collective agreement. Notice of the increase shall be given by ALTUROS to the Customers along with corresponding documentation.
5.4 It is agreed that fees under ongoing payment obligations shall be adjusted in line with the European Harmonised Index of Consumer Prices (HICP). The baseline figure shall be that for the month during which the contract was concluded.
5.5 Travel expenses shall be billed separately to the CUSTOMER. Travelling time shall be deemed to constitute working time.
6. Payment
6.1 The invoices issued by ALTUROS, which shall include value added tax, shall be payable within 14 days of receipt of the invoice without any deduction and with any charges paid. The payment terms stipulated for the overall order shall apply mutatis mutandis to partial invoices.
6.2 Any entitlement to deduct a discount must be expressly agreed to in writing.
6.3 Any payment references provided by the CUSTOMER on bank transfer documentation shall not be binding for us.
6.4 For orders comprising multiple components (e.g. programs and/or training, realisation in stages), ALTUROS shall be entitled to issue an invoice following the delivery of each individual unit or completion of each individual performance component.
6.5 The CUSTOMER shall not be entitled to withhold payment on the grounds that the overall delivery has not been completed, or with reference to guarantee claims, warranty claims or defects.
6.6 In the event of any payment default by the CUSTOMER under other contractual relationships with us, we shall be entitled to suspend compliance with our obligations under this contract until performance by the Customer. All related costs, including forgone profit, shall be borne by the CUSTOMER. In the event of any payment default, we shall also be entitled to demand immediate payment of all amounts outstanding in respect of services already provided under the ongoing business relationship with the Customer.
6.7 In the event of any payment default, ALTUROS shall be entitled to demand immediate payment of all amounts outstanding in respect of services already provided under the ongoing business relationship with the CUSTOMER.
6.8 In the event of payment default by the CUSTOMER towards us under individual contracts concerning services and supplies, ALTUROS shall be entitled to suspend compliance with its obligations under the relevant contract.
6.9 If a payment deadline is not respected, even if only in relation to an individual instance of partial performance, any beneficial terms (rebates, discounts, etc.) shall be forfeit and shall be imputed to the invoice.
6.10 The CUSTOMER undertakes in the event of payment default to compensate ALTUROS for any necessary and appropriate debt recovery costs (reminder fees, collection charges, lawyers’ fees, etc.).
6.11 ALTUROS shall be entitled to charge default interest at a level of 8.0% per annum in the event of payment default by the CUSTOMER.
7. Credit check
7.1 The CUSTOMER expressly accepts that his/her/its data may be transmitted to the state-accredited creditor protection association for creditor protection purposes.
8. Delivery deadline
8.1 ALTUROS shall endeavour to adhere as closely as possible with the agreed delivery and partial delivery deadlines.
8.2 ALTUROS will only be able to comply with the target delivery deadline if the CUSTOMER performs all necessary work and provides all necessary documentation in full by the deadlines specified by ALTUROS, including in particular the service description accepted by him/her/it in accordance with clause 6.2., and complies with his/her/its duty of cooperation to the requisite extent.
8.3 In the event that any requirements or framework conditions are inaccurate, incomplete, or subsequently amended, ALTUROS shall be released from all agreed delivery deadlines. The resulting additional costs (e.g. additional costs for ALTUROS) shall be borne by the CUSTOMER.
8.4 ALTUROS shall be entitled to make partial deliveries and to issue corresponding partial invoices for orders comprising multiple project phases or delivery modules, even if the partial delivery in question cannot be productively used by the CUSTOMER.
9. Warranty, maintenance, changes
9.1 ALTUROS warrants that the software shall perform the functions described in the associated documentation, provided that the software is used on the operating and other third party peripheral systems described in the Contract.
9.2 Errors shall be rectified upon condition that:
– the CUSTOMER sufficiently describes the error in the error report and ALTUROS is able to identify the error;
– the CUSTOMER provides ALTUROS with all documentation necessary in order to rectify the error;
– the CUSTOMER or any third party for the actions of which he/she/it is responsible has not interfered with the software;
– the software is being operated under standard operating conditions in accordance with the documentation.
9.3 In the event of a warranty claim, rectification shall under all circumstances be the preferred option ahead of a price reduction or rescission of the contract. If an objection concerning any error is well-founded, the errors shall be rectified within a reasonable period, and the CUSTOMER shall enable ALTUROS to take all steps necessary in order to investigate and rectify the error.
9.4 Any corrections and supplementary work necessary prior to the handover of the agreed performance due to organisational and programming difficulties for which the CUSTOMER is responsible shall be carried out free of charge by ALTUROS.
9.5 Costs relating to the provision of support, error diagnosis, and the rectification of errors and faults for which the CUSTOMER is responsible along with any other corrections, changes and upgrades shall be charged by ALTUROS to the CUSTOMER. This shall also apply to the rectification of errors arising as a result of program changes, upgrades or other interference by the CUSTOMER or by a third party.
9.6 In addition, ALTUROS provides no warranty for errors, disruption or losses attributable to improper handling, any change in operating system components, interfaces problems with third party systems or the systems of integration partners and third party producers, the usage of inappropriate organisational instruments and data storage, abnormal operating conditions, and losses during transit.
9.7 Any warranty provided by ALTUROS shall lapse in relation to programs that have subsequently been changed by the programmers of the CUSTOMER or of a third party.
9.8 Where the order concerns a change or upgrade to an existing program, the warranty shall apply to the change or upgrade. The warranty for the original program shall not thereby be revived.
9.9 Warranty claims shall become time limited six (6) months after handover.
10. Copyright and usage
10.1 Following the payment of the agreed fee, ALTUROS shall grant the CUSTOMER an on- exclusive, non-transferable, non-licensable, and temporally limited right to use the software for the hardware specified in the Contract for the number of licences acquired enabling simultaneous usage on multiple work stations and to use the results of all work created by ALTUROS under the Contract for the Customer’s own internal purposes. All other rights shall remain with ALTUROS.
10.2 The CUSTOMER shall not acquire any rights over and above the usage stipulated in the Contract on account of his/her/its involvement in the production of the software. Any breach of the copyright held by ALTUROS shall give rise to entitlement to claim damages, in which case compensation shall be payable.
10.3 The CUSTOMER shall be permitted to make copies for archival and data backup purposes, provided that the software does not contain any express prohibition by the licensor or a third party and that all copyright and ownership marks are transferred into these copies unchanged.
10.4 ALTUROS shall incur no liability in the event that any data is not properly stored by the CUSTOMER or if any data is processed by the CUSTOMER in breach of the law, in particular of applicable data protection law.
10.5 Should it be necessary to disclose any interfaces in order to establish the interoperability of the present software, the CUSTOMER shall commission ALTUROS to do so and shall reimburse any related costs. If ALTUROS is unable to establish interoperability and decompilation is performed according to the Austrian Copyright Act, the results shall be used exclusively in order to establish interoperability. Compensation shall be payable in the event of any misuse.
10.6 If the CUSTOMER is provided with software that is licensed by a third party (e.g. Microsoft standard software), a usage right shall be granted in accordance with the terms and conditions of the licensor (producer)
11. Right of withdrawal
11.1 In the event that an agree delivery deadline is not respected due to the sole fault of or to any unlawful act on the part of ALTUROS, the CUSTOMER shall be entitled to cancel the order concerned by registered letter if the agreed performance is not effected in its essential components prior to the expiry of two reasonable grace periods, unless the CUSTOMER was responsible for the failure to perform. The reasonableness of the grace period shall be determined with reference to the agreed performance and shall be confirmed by ALTUROS to the CUSTOMER.
11.2 ALTUROS shall be released from its obligation to deliver or shall be entitled to establish a new delivery period in the event of force majeure, industrial disputes, natural disasters and transport stoppages or any other circumstances beyond the control of ALTUROS.
11.3 Cancellation by the CUSTOMER shall only be permitted with the written approval of ALTUROS. If ALTUROS accepts a cancellation, it shall be entitled to charge a cancellation fee of 30% of the value of the overall product that has not yet been billed, in addition to charging for services already rendered and any costs and consequential costs incurred.
12. Liability
12.1 ALTUROS shall bear liability towards the CUSTOMER for any losses demonstrably caused by it only in the event of gross negligence on its part. This shall also apply mutatis mutandis for losses attributable to third parties involved by ALTUROS. Liability shall be limited to the order value of the underlying contract. ALTUROS shall bear liability without limitation in relation to personal injury for which it is at fault.
12.2 It is expressly stipulated that no liability shall be incurred for indirect losses, such as for example loss of profit, costs associated with an interruption of operations, data loss or third party claims.
12.3 Damages claims shall become time limited as provided for by law, or if earlier one year after the relevant party became aware of the loss and the party responsible for it.
12.4 If and insofar as the CUSTOMER is able to claim under insurance for losses for which we bear liability under business liability insurance concluded by him/her/it or in favour of him/her/it (e.g. third party liability, interruption of operations etc.), the Customer undertakes to claim under the insurance. The liability of ALTUROS shall be limited to the adverse consequences arising for the Customer as a result of any claim under this insurance, such as e.g. increased insurance premiums.
12.5 If ALTUROS carries out the work with the assistance of third parties and any warranty and/or liability claims arise in this regard against such third parties, ALTUROS shall assign these claims to the CUSTOMER. In such an eventuality, the CUSTOMER shall take action in the first instance against such third parties.
12.6 If data backup is expressly agreed to as a service, liability for the loss of data is not excluded, but shall be limited as regards data recovery to a maximum of 10% of the order value in euros for each instance of loss, subject to an overall maximum of EUR 15,000.00. The CUSTOMER shall have no warranty or damages claims on any legal grounds whatsoever in addition to those specified in this Contract.
13. Data protection, confidentiality
13.1 ALTUROS shall oblige its staff to comply with the relevant applicable data protection law.
14. Severability
14.1 Should any individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
14.2 The parties hereby undertake to adopt a replacement provision – acting in accordance with the dictates of good faith – which comes as close as possible to the economic result of the invalid term, taking account of standard sectoral practice.
15. General
15.1 The law of the country in which the registered office of the contractor (ALTUROS) is situated shall apply.
15.2 The UN Convention on Contracts for the International Sale of Goods shall not apply.
15.3 The courts with competence ratione loci over the contractor (ALTUROS) shall have jurisdiction over all disputes arising out of the contractual relationship or future contracts between us and the Customer.
15.4 The Customer shall inform us promptly in writing of any changes to her/her/its name, company name, address, legal status, or other relevant information.
