General Terms and Conditions (GTC)
1.1 These „General Terms and Conditions of Business and Delivery“ (hereinafter referred to as „GTC“) shall apply to all present and future services and deliveries provided by LumoBag GmbH to the contracting partner (hereinafter referred to as „Customer“). Third-party terms and conditions of business and purchase shall only apply to the extent that they correspond to these GTC.
1.2 The GTC, together with the relevant service descriptions and the provisions on fees, shall form an integral part of any contractual relationship entered into with LumoBag GmbH.
1.3 The current version of the GTC together with the service descriptions and terms and conditions of charges applicable to the services in question and not agreed individually are available for inspection at LumoBag GmbH or can be downloaded from the LumoBag GmbH website.
- Scope and validity
2.1 All offers are subject to change without notice and are non-binding.
2.2 All orders and agreements shall be legally binding when the order placed by the customer has been received by LumoBag GmbH in writing, online or by e-mail.
2.3 Orders shall only be confirmed in writing at the express request of the customer.
2.4 If acceptance by LumoBag GmbH is not expressly made, but is made by delivery to the address provided by the customer or by LumoBag GmbH’s actual performance of the service, the contract shall be deemed to have come into existence at that time. In this case, the date of performance shall be deemed to be the beginning of the period in the event of an agreed minimum contract period or for the period of the waiver of termination, etc. This shall not apply to the right of withdrawal from the contract. This does not apply to the right of withdrawal according to § 3 KSchG or § 11 FAGG.
- Contracting parties
3.1 LumoBag GmbH’s customer may only be a natural person or a legal entity as well as a company registered in the commercial register without legal personality.
3.2 LumoBag GmbH shall be entitled to demand from the customer all necessary information concerning the identity as well as the legal capacity of the customer by producing official documents such as photo identification and registration papers as well as proof of the existence of a power of signature or representation. Furthermore, the customer shall, upon LumoBag GmbH’s request, provide LumoBag GmbH with an address for service and a paying agent as well as proof of bank details.
3.3 LumoBag GmbH shall be entitled to verify all information provided by the customer as well as the customer’s creditworthiness.
- Delivery dates
4.1 LumoBag GmbH shall endeavour to meet the agreed delivery dates as closely as possible. If the stated delivery date is exceeded by more than 30 days, the customer shall be entitled to withdraw from the contract after setting a further period of grace of at least 90 days by registered letter. LumoBag GmbH may also withdraw from the contract if delivery becomes impossible due to force majeure, labour disputes, official orders, the failure of communication networks and gateways of other operators, disruptions in the line network in the area of communication service companies or other obstacles unavoidable by LumoBag GmbH, such as transport interruptions or production stoppages. In both cases, LumoBag GmbH shall only be obliged to refund received deposits without interest.
4.2 All delivery dates shall be subject to correct and timely delivery to LumoBag GmbH itself, provided that LumoBag GmbH has entered into a congruent hedging transaction and has not received delivery from its supplier in due time.
4.3 The targeted performance dates can only be met if the customer provides all necessary work and documents in full, in particular the performance specification accepted by it, by the dates specified by LumoBag GmbH and meets its obligation to co-operate to the extent required. LumoBag GmbH shall not be responsible for delays in delivery and increases in costs resulting from incorrect, incomplete or subsequently changed details and information or documents provided and such delays shall not result in default on the part of LumoBag GmbH. Any additional costs resulting therefrom shall be borne by the customer.
4.4 In the event of failure of services due to a disruption outside the responsibility of LumoBag GmbH, no refund of fees shall be made.
- Right of ownership
5.1 The delivered hardware (Materials, machines, accessories etc.) or software (programs created by LumoBag GmbH, programs created by third parties) shall remain the unrestricted property of LumoBag GmbH until payment has been made in full (including interest and costs). During this period the customer shall ensure proper maintenance (servicing and repair) at his own expense. Any pledging or transfer of ownership by way of security prior to full payment shall be deemed excluded.
5.2 If the customer fails to properly fulfil its obligations under the contract, LumoBag GmbH shall be entitled at any time to recover its property at the customer’s expense and the customer shall be obliged to surrender it.
5.3 LumoBag GmbH shall be entitled to demand the immediate surrender of all goods subject to retention of title if the customer is in default of payment.
6.1 Any liability for damages on the part of LumoBag GmbH shall only exist in the event of gross negligence on the part of LumoBag GmbH or its employees. In all cases of an agreed service contract a maximum liability shall be stipulated or limited in this contract. LumoBag GmbH shall not be liable for damages in excess of this limit, except in the case of wilful misconduct and personal injury caused by LumoBag GmbH. This shall also apply to consequential damage and loss of profit on the part of the customer. Furthermore, LumoBag GmbH shall not be liable for damage caused by unauthorised and illegal system access by third parties or by machine faults and/or malfunctions.
6.2 Furthermore, LumoBag GmbH shall not assume any warranty for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions and transport damage.
6.3 Compensation for consequential damage and pecuniary loss, savings not achieved, loss of interest and damage arising from third-party claims against LumoBag GmbH shall be excluded in all cases to the extent permitted by law.
6.4 Return of rejected goods shall require the express prior consent of LumoBag GmbH. Return shipment shall be at the expense and risk of the customer.
6.5 LumoBag GmbH shall not be liable for the replacement of destroyed data or for any resulting damage (in particular financial loss, copyright damage etc.). LumoBag GmbH may assist the customer in the reconstruction of destroyed data in return for a separate order.
6.6 LumoBag GmbH points out that security deficiencies and risks may arise if the customer uses system components and hardware solutions which LumoBag GmbH classifies as only partially suitable with regard to the necessary security and data protection requirements.
- Data security
7.1 In order to protect all data stored by LumoBag GmbH, LumoBag GmbH shall use all state of the art, tried and tested measures that are customary in the market, provided that these measures are technically possible and reasonable. Should a third party succeed in gaining unauthorised and unlawful access to data stored at LumoBag GmbH or in using data stored at LumoBag GmbH in an unlawful manner as a result of programs on the Internet which affect and damage the system, LumoBag GmbH shall only be liable to the customer in the event of intentional or grossly negligent conduct.
7.2 The customer shall be obliged to maintain secrecy in respect of all data made available to the customer by LumoBag GmbH (e.g. passwords, codes for the operation of software, etc.). If there is any suspicion of knowledge of the data by unauthorised third parties, the customer shall immediately change the data or have LumoBag GmbH change the data. The customer shall be liable for any damage caused by inadequate secrecy of passwords by him or by disclosure to third parties.
- Copyright and use
8.1 LumoBag GmbH or its licensors shall be entitled to all copyrights to the agreed services (machines, materials, programmes, documentation, etc.). The Customer shall exclusively be granted the right to use the Hardware and Software after payment of the agreed remuneration exclusively for its own purposes, only for the Hardware specified in the contract and to the extent of the number of licences purchased for simultaneous use on several workstations / systems. Only a licence to use the work is acquired through the present contract. Distribution by the client is excluded in accordance with the Copyright Act. The Client’s cooperation in the production of the hardware and software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the copyrights shall result in claims for damages, whereby full satisfaction shall be paid in such a case.
8.2 The Client is permitted to make copies for archiving and data backup purposes on condition that the hardware and software do not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.
8.3 Should it be necessary to disclose the interfaces in order to achieve interoperability of the software in question, the customer shall request LumoBag GmbH to do so for a fee. If LumoBag GmbH does not comply with this request and decompilation takes place in accordance with the Copyright Act, the results shall be used exclusively for the purpose of establishing interoperability. Misuse shall result in compensation for damages.
- Secrecy, data protection, personal master data
9.1 LumoBag GmbH and the customer undertake to observe the relevant provisions of data protection, in particular Art. 2 § 6 of the Data Protection Act, and to oblige their employees to do likewise.
9.2 LumoBag GmbH undertakes to keep all data confidential. Furthermore, LumoBag GmbH undertakes to refrain from disclosing such data to third parties or, if necessary, to obtain written consent from the customer.
9.3 However, LumoBag GmbH shall be entitled, on the basis of contracts with manufacturers or suppliers of materials, machines, programmes, software products etc., to comply with the obligations arising therefrom to disclose information relating to the system installed by LumoBag GmbH (e.g. number and scope of licences granted). The customer expressly consents to this.
9.4 LumoBag GmbH shall be entitled to keep log and access statistics, in particular for the protection of its own servers or computers. This data may be used to remedy technical defects.
- Duty of notification
10.1 The customer shall be obliged to notify LumoBag GmbH in writing of any changes to its name, designation or company name, address and/or registered office, paying agent, loss of legal capacity or any other change (such as legal form, company register number, bank details, etc.) immediately, but no later than within one month of the change.
10.2 If the customer fails to notify LumoBag GmbH of the changes referred to in clause 13.1 and therefore does not receive legally significant declarations or documents sent to it (e.g. invoices, reminders, notices of termination, amendments, etc.), such declarations shall nevertheless be deemed to have been received.
- Right of withdrawal
11.1 In the event that an agreed delivery period is exceeded due to LumoBag GmbH’s sole fault or unlawful action, the customer shall be entitled to withdraw from the relevant order by registered letter if the agreed performance is not provided in substantial parts even within the period of grace specified in clause 5.1 and the customer is not at fault in this respect.
11.2 Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond LumoBag GmbH’s control shall release LumoBag GmbH from its obligation to deliver or allow it to reschedule the agreed delivery period.
11.3 Cancellations by the customer shall only be possible with the written consent of LumoBag GmbH. If LumoBag GmbH agrees to a cancellation, LumoBag GmbH shall have the right to charge a cancellation fee amounting to 30% of the order value of the total project not yet invoiced, in addition to the services rendered and costs incurred.
12.1 All prices are in EURO excluding VAT and any shipping costs as well as excluding packaging. They shall only apply to the agreed order.
12.2 All fees and taxes (in particular VAT) shall be calculated on the basis of the currently valid legal situation. In the event that the tax authorities subsequently prescribe taxes or duties, these shall be borne by the client.
12.3 The prices quoted are ex LumoBag GmbH’s place of business.
12.4 The services shall be based on the general prices for services notified by LumoBag GmbH to the customer. LumoBag GmbH shall be entitled to change and adjust prices, in particular to adjust the stated prices in line with the market and in particular to take into account changes in the general level of wages, index development, etc. LumoBag GmbH shall not be liable for any such changes. to be taken into account. LumoBag GmbH shall give notice of any price changes at least 20 days in advance. The parties are free to make special agreements in individual cases. Travel time shall be deemed to be working time. Fractions of an hour of work shall be rounded upwards to full quarter hours.
12.5 On-site performance of services: If the performance of the contractually agreed scope of services is rendered on site at the customer’s business premises – either at the customer’s request or in accordance with technical feasibility (the decision in this respect rests with LumoBag GmbH) – the customer shall bear the ancillary costs (such as travel costs, etc.) as well as any overnight accommodation costs for LumoBag GmbH’s persons charged with the performance of the service.
12.6 All prices quoted are non-binding until acceptance of the order.
- Terms of payment
13.1 Invoicing shall, as far as possible, take place immediately after the service or delivery has been provided.
13.2 In the case of orders comprising several units, LumoBag GmbH shall be entitled to invoice after delivery of each individual unit or service. For partial invoices, the payment terms specified for the overall order shall generally apply analogously.
13.3 Unless otherwise agreed, invoices from LumoBag GmbH shall be due for payment promptly without deduction and free of charges. Notwithstanding any declarations of dedication to the contrary by the customer, LumoBag GmbH shall be entitled to use incoming sums of money first of all to cover accrued costs, expenses, cash outlays, interest on arrears and lastly to settle the outstanding invoice amount. If cheques are accepted, this shall be done on account of payment without exception. This shall also apply in the case of assignment of claims. Collection and discount interest and expenses shall be borne by the customer.
13.4 Notices of defects shall not entitle the principal to withhold or reduce any invoices.
13.5 Objections to invoiced remuneration claims must be raised by the customer in writing with LumoBag GmbH within one month of receipt of the invoice, otherwise the claims shall be deemed to have been accepted. LumoBag GmbH shall, on the basis of timely objections, review all factors on which the determination of the disputed charge claim is based and confirm the correctness of the disputed charge claim on the basis of the result or amend the invoice accordingly. Legal claims of the Client in the event of justified objections after expiry of the above-mentioned deadlines shall remain unaffected. Claims for remuneration from other suppliers or operators which are imposed on the customer for LumoBag GmbH’s account on the basis of the contract or an agreement on the additional service – e.g. claims for remuneration for domain registration etc. – shall be equivalent to claims for remuneration from LumoBag GmbH.
13.6 If, after the conclusion of the contract, justified concerns arise with regard to the creditworthiness or financial circumstances of the customer, LumoBag GmbH shall be entitled to demand security or payment in advance prior to delivery or performance of the services. In the event of refusal, LumoBag GmbH shall be entitled to withdraw from the contract without being obliged to pay damages to the customer.
13.7 The customer shall bear the risk for the duration of the transfer and the transfer process until it is received in the account of LumoBag GmbH. A payment shall be deemed to have been made on the day on which LumoBag GmbH can dispose of it.
13.8 Compliance with the agreed payment dates shall constitute an essential condition for LumoBag GmbH’s performance of the delivery or fulfilment of the contract: failure to comply with the agreed payment dates shall entitle LumoBag GmbH to discontinue work in progress and to demand advance payments or securities for services still outstanding. If the customer is in arrears with at least one payment of an invoice that is already due, despite a reminder and the setting of a grace period of 10 days, all claims arising from the business relationship with the customer shall become due for payment immediately, irrespective of any payment terms granted or cheques received. In the event of default, LumoBag GmbH shall also be entitled to withdraw from the contract; this shall apply in particular if no advance payments or securities have been provided for outstanding services. In the event of such justified withdrawal from the contract by LumoBag GmbH, the services provided by LumoBag GmbH shall be discontinued. All costs incurred as a result of the delay or early withdrawal (through no fault of LumoBag GmbH) from the contract as well as any damage incurred by LumoBag GmbH as a result thereof, including loss of profit, shall be reimbursed by the customer.
13.9 LumoBag GmbH shall in all cases, including in the event of default in payment, be entitled to charge interest on arrears at the usual bank rate plus statutory value added tax.
13.10 Discounts or bonuses granted by LumoBag GmbH shall only apply if full payment is received on time.
13.11 The customer shall not be entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints. The customer shall therefore pay for each individual service provided – irrespective of the provision of further services. Accordingly, LumoBag GmbH shall be entitled to provide partial services and to invoice for such partial services.
13.12 The customer shall not be entitled to set off its own claims of any kind whatsoever. The only exceptions to this prohibition of set-off are claims of the customer which have already been established by a court of law or which LumoBag GmbH has acknowledged to be correct.
13.13 In the event of legal action or collection by third parties due to default in payment, all costs incurred shall be borne by the customer.
13.14 The place of performance for delivery and payment shall be the registered office of LumoBag GmbH.
14. Final provisions
14.1 Unless otherwise agreed or excluded by law, the statutory provisions applicable between entrepreneurs pursuant to §§ 1-3 of the Austrian Commercial Code (UGB) and legal persons under public law shall apply.
14.2 For the sale or provision of services to consumers within the meaning of the Consumer Protection Act or for contracts concluded at a distance and off-premises (distance and off-premises transactions) between entrepreneurs and consumers within the meaning of the Distance and Off-premises Transactions Act, the above provisions shall apply only to the extent that these laws do not mandatorily provide for other provisions.
14.3 Should one of the provisions of this contract be or become legally ineffective, the parties undertake to replace this provision with another provision which comes as close as possible to the meaning of the omitted provision and is legally effective.
14.4 There are no verbal collateral agreements. Subsequent amendments and additions to a contract require written confirmation in order to be valid.
14.5 Austrian law shall apply exclusively to all disputes, even if the order is executed abroad. With regard to all disputes with LumoBag GmbH, the customer submits to the exclusive jurisdiction of the competent court in 8010 Graz. LumoBag GmbH shall also be entitled to take legal action against the customer at this respective place of business.
14.6 All rights and obligations under this agreement shall pass to the respective legal successors; the parties undertake to transfer the effects of the contract to their legal successors.