§ 1 Scope of application
1.1 The following general terms and conditions of sale, delivery and payment apply to all contracts of n-tree solutions Ticketsysteme GmbH, in particular also to all future transactions. The deliveries and services of n-tree solutions Ticketsysteme GmbH are provided exclusively in accordance with the following general terms and conditions. Other conditions, in particular general terms and conditions of purchase submitted by the customer and deviating declarations by the customer, only become part of the contract if the validity of these other conditions and deviating declarations is expressly confirmed in writing by n-tree solutions Ticketsysteme GmbH. Our General Terms and Conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. In this case, the general terms and conditions to the contrary are invalid. The general terms and conditions of the company n-tree solutions Ticketsysteme GmbH are accepted by the customer upon signing the order confirmation.
1.2 These General Terms and Conditions of Sale, Delivery and Payment shall not apply in connection with public contracts awarded within the framework of legally standardized procurement procedures to the extent that they contradict the respective tender conditions or applicable statutory procurement regulations.
§ 2 Performance and delivery
2.1 All offers from n-tree solutions Ticketsysteme GmbH are subject to change and non-binding. Orders and delivery contracts only become binding for n-tree solutions Ticketsysteme GmbH once the “General Terms and Conditions” have been signed and accepted by the customer. Orders are only binding for n-tree solutions Ticketsysteme GmbH if and insofar as the order confirmation is checked and confirmed in writing by the customer or if they are fulfilled by sending the goods and issuing an invoice.
2.2 The company n-tree solutions Ticketsysteme GmbH is entitled to withdraw from contracts if facts arise which show that the customer is not creditworthy. If a negative credit report is issued on the customer after the order has been signed, n-tree solutions Ticketsysteme GmbH is entitled to unilaterally change the payment terms already agreed or to demand appropriate security from the customer. The company n-tree solutions Ticketsysteme GmbH is then in any case entitled to make its services dependent on the provision of corresponding securities by the customer or to withhold its services until such securities have been provided. If the customer does not accept the change to the payment terms or does not provide security, n-tree solutions Ticketsysteme GmbH is entitled to withdraw from the contract – without any detrimental legal consequences for n-tree solutions Ticketsysteme GmbH. The right of n-tree solutions Ticketsysteme GmbH to demand compensation from the customer for expenses incurred up to that point remains unaffected.
2.3 Cost estimates for repairs, installations and other additional services shall be drawn up to the best of our knowledge. However, deviations may occur under certain circumstances. If costs increase by more than 15% after the order has been placed, n-tree solutions Ticketsysteme GmbH will inform the client immediately. In the case of unavoidable cost overruns of up to 15%, a separate agreement is not required.
2.4 n-tree solutions Ticketsysteme GmbH expressly reserves the right to make partial deliveries and issue partial invoices (partial invoicing).
2.5 The delivery date is agreed according to the anticipated performance capacity of n-tree solutions Ticketsysteme GmbH and is non-binding and subject to timely delivery by our own suppliers. The company n-tree solutions Ticketsysteme GmbH is not responsible for delays in delivery due to force majeure and due to unforeseeable events, such as in particular government measures, failure to obtain official permits, labor disputes of any kind, sabotage, lack of raw materials, late deliveries of materials through no fault of its own, etc., which make delivery difficult or impossible for the company n-tree solutions Ticketsysteme GmbH – even if they occur at suppliers of the company n-tree solutions Ticketsysteme GmbH – even in the case of bindingly agreed deadlines and dates. The delivery period shall be extended by the duration of the disruption and its consequences. The delivery period shall also be extended if these events occur during a delay that has already occurred. Any grace period set by the customer shall also be extended by the duration of the disruption and its consequences. The customer shall not be entitled to claim damages for late delivery.
2.6 The company n-tree solutions Ticketsysteme GmbH is not responsible for delays in delivery, cost increases or damages caused by incorrect, incomplete or subsequently changed information or documents made available, and can therefore not bring the company n-tree solutions Ticketsysteme GmbH into default. Any resulting additional costs shall be borne solely by the customer.
2.7 Any postponement of a delivery date requested by the customer must be made in writing. If the customer is in default of acceptance, n-tree solutions Ticketsysteme GmbH has the right, in addition to the payment claim, to either set a new delivery date or withdraw from the contract.
2.8 Unless otherwise expressly agreed in writing, all transportation shall be “ex works” (EXW; Incoterms 2000) in A-6900 Bregenz.
§ 3 Copyright and use
3.1 The software components are the sole intellectual property of n-tree solutions Ticketsysteme GmbH. Upon payment of the fee, the customer shall receive a simple, non-exclusive, non-transferable and revocable license to use the programs for the agreed authorized user. All rights to the programs, with the exception of those listed above, and in particular the copyright, remain with n-tree solutions Ticketsysteme GmbH or its suppliers.
3.2 The customer shall ensure the confidential treatment of the subject matter of the contract by taking appropriate precautions and issuing instructions to all persons who have access to the subject matter of the contract.
3.3 Existing markings, copyright notices or proprietary notices of n-tree solutions Ticketsysteme GmbH may not be removed, concealed or altered.
3.4 The customer is not entitled to modify the software programs installed on his computer or to allow third parties to use them, to pass them on to third parties or to resell them.
3.5 Copies, concepts, proposed solutions, service descriptions, plans, sketches and other technical documents as well as samples and test programs etc. remain the property of n-tree solutions Ticketsysteme GmbH. Any use – in particular the passing on, duplication and publication – requires the express consent of n-tree solutions Ticketsysteme GmbH.
3.6 A contractual penalty in the amount of EUR 100,000.00 – not subject to judicial mitigation – shall be deemed agreed for each violation of the provisions of § 3. The company n-tree solutions Ticketsysteme GmbH reserves the right to other legal remedies, in particular claims for damages, against which the contractual penalty is not offset.
§ 4 Prices and terms of payment
4.1 Unless expressly stated otherwise, all prices quoted by n-tree solutions Ticketsysteme GmbH are in euros and exclusive of VAT. In the event of invoicing, the statutory VAT will be added to these prices. Packaging, transport, transport insurance, handling charges and environmental expenses are always invoiced separately in accordance with the current commercial price lists.
4.2 All printed or stored prices in price lists, catalogs, brochures, electronic media and the like are subject to change.
4.3 Unless otherwise agreed in writing, 30% of the agreed purchase price shall be due for payment when the order is placed (down payment), 60% upon delivery and 10% upon completion. A deduction of a cash discount shall only be recognized within the scope of and on the basis of a written agreement. Compliance with the agreed payment deadlines is an essential condition for the performance of the services by n-tree solutions Ticketsysteme GmbH.
4.4 If there is a deviation from these specified terms of payment without a justifiable reason, n-tree solutions Ticketsysteme GmbH may at any time demand either delivery step by step against cash payment, advance payment or provision of security.
4.5 Should the wage costs change due to collective agreement regulations in the industry or due to internal company agreements or other costs necessary for the provision of services, such as those for materials, energy, transportation, external work, financing, etc., n-tree solutions Ticketsysteme GmbH is entitled to adjust the prices accordingly.
4.6 The company n-tree solutions Ticketsysteme GmbH is entitled to offset payments against older debts, despite the customer’s provisions to the contrary. If the buyer is in default of payment, n-tree solutions Ticketsysteme GmbH is entitled to charge interest on arrears at a rate of 6% plus VAT. of the banks’ current refinancing rate. Even if the buyer is in default of payment through no fault of his own, n-tree solutions Ticketsysteme GmbH is entitled to charge interest on arrears at a rate of 4% per annum. This shall not affect claims for compensation for higher interest.
4.7 In the event of default, the customer undertakes to reimburse n-tree solutions Ticketsysteme GmbH for the dunning and collection expenses incurred by the company, insofar as they are necessary for appropriate legal prosecution. If no collection agency is involved, i.e. if the dunning process is carried out by n-tree solutions Ticketsysteme GmbH itself, the debtor undertakes to pay n-tree solutions Ticketsysteme GmbH EUR 11.00 per reminder issued and an amount of EUR 4.00 per half-year for keeping the debt relationship on record in the dunning process. In addition, any further damage, in particular also the damage resulting from the fact that higher interest accrues on any credit accounts on our part as a result of non-payment, shall be compensated, irrespective of fault for the default in payment.
4.8 The customer is not entitled to withhold payments in whole or in part due to any guarantee or warranty claims, compensation for damages, notices of defects, incomplete overall delivery or any other possible claims.
§ 5 Prohibition of assignment and set-off
5.1 Claims against the company n-tree solutions Ticketsysteme GmbH may not be assigned without express written consent.
5.2 Offsetting against the claims of n-tree solutions Ticketsysteme GmbH with counterclaims of any kind whatsoever is excluded.
§ 6 Installation requirements and guidelines
6.1 Special installation requirements are specified in the supply contracts. General installation requirements do not have to be explicitly stated in supply contracts; they are listed in Section 6.2. The customer is responsible for complying with the requirements specified by n-tree Solutions Ticketsysteme GmbH.
6.2 General installation requirements are:
- Completion of the entire power supply
- Completion of the entire network infrastructure including acceptance protocol
- Completion of the premises
- Completion of the telecommunications infrastructure.
6.3 As soon as the customer has complied with the general and special installation guidelines of n-tree solutions Ticketsysteme GmbH to the extent that acceptance by n-tree solutions Ticketsysteme GmbH is possible, he must inform us of this immediately in writing. However, the preliminary construction work must be released for acceptance by n-tree solutions Ticketsysteme GmbH at least one week before the installation date.
6.4 The company n-tree solutions Ticketsysteme GmbH will immediately carry out an acceptance of the preliminary construction work. If defects are discovered during acceptance, the customer must rectify these immediately.
6.5 If there is no defect-free acceptance by n-tree solutions Ticketsysteme GmbH before the agreed installation date, all agreed dates lose their validity and new dates must be agreed. If the customer expressly requests the start of installation before the defect-free acceptance of the installation requirements by n-tree solutions Ticketsysteme GmbH, the customer shall be liable for the consequences arising in this connection.
6.6 The installation plans must be made available to n-tree solutions Ticketsysteme GmbH for inspection and testing 8 weeks before the start of installation.
§ 7 Project organization
7.1 The company n-tree solutions Ticketsysteme GmbH and the customer will each appoint a project manager.
7.2 In the event of differentiating statements, only the statements of the project managers shall be authoritative.
7.3 If there are changes in the person of the project manager on the part of the customer, the customer shall bear all resulting costs and delays.
§ 8 Expenses
8.1 The costs for travel, daily and overnight allowances shall be invoiced separately to the customer. Travel times count as working hours.
§ 9 Transfer of risk
9.1 The risk of loss or damage is transferred to the customer as soon as the shipment has been handed over to the person carrying out the transport or has left the warehouse of n-tree solutions Ticketsysteme GmbH for the purpose of shipment. If shipment becomes impossible through no fault of n-tree solutions Ticketsysteme GmbH, the risk is transferred to the buyer upon notification of readiness for shipment.
§ 10 Place of fulfillment
10.1 The place of performance for delivery and payment is A-6900 Bregenz, Brosswaldengasse 12. If the customer wishes the goods to be sent to him, he shall bear the costs and expenses of shipping. The risk is then transferred when the goods are handed over to the carrier.
§ 11 Retention of title
11.1 All delivered goods and services remain the property of n-tree solutions Ticketsysteme GmbH until the purchase price and all associated interest and expenses have been paid in full. In the event of even partial default of payment, n-tree solutions Ticketsysteme GmbH is entitled to collect the goods without the buyer’s consent. The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
11.2 The customer is obliged to cooperate in measures that n-tree solutions Ticketsysteme GmbH wishes to take to protect its ownership of the delivered goods.
11.3 If third parties wish to establish or assert a right to the reserved goods, the customer must inform n-tree solutions Ticketsysteme GmbH of this immediately.
11.4 If payment has not yet been made in full, any form of sale, modification, processing or integration into objects other than the contractual products requires the prior written consent of n-tree solutions Ticketsysteme GmbH. This means that any legal disposal of delivery items before full payment of the purchase price is not permitted without the written consent of n-tree solutions Ticketsysteme GmbH.
11.5 If the goods subject to retention of title are combined, processed or mixed with goods not belonging to n-tree solutions Ticketsysteme GmbH, n-tree solutions Ticketsysteme GmbH acquires co-ownership in proportion to the invoice value of the goods subject to retention of title to the other goods.
11.6 If the reserved goods or the processed product are sold by the customer, the customer hereby assigns all claims against the purchaser from the resale to n-tree solutions Ticketsysteme GmbH as security. The customer is authorized and obliged to collect the claims as long as n-tree solutions Ticketsysteme GmbH does not revoke this authorization. The customer is obliged to inform n-tree solutions Ticketsysteme GmbH of the third-party debtors on request and to notify them of the assignment. The direct debit authorization expires without express declaration by n-tree solutions Ticketsysteme GmbH if the customer stops making payments or is in arrears with a payment obligation to n-tree solutions Ticketsysteme GmbH. The company n-tree solutions Ticketsysteme GmbH will not make use of its authority to collect as long as the customer meets his payments on time.
11.7 Pledging or transfer by way of security of the reserved goods or the assigned claim to third parties is not permitted without the consent of n-tree solutions Ticketsysteme GmbH. The customer must notify n-tree solutions Ticketsysteme GmbH immediately if the reserved goods are seized by third parties.
11.8 As soon as the customer has suspended payments, and immediately after notification of the suspension of payments, the customer is obliged to send n-tree solutions Ticketsysteme GmbH a list of the reserved goods still available, even if they have been processed, and a list of the claims against the third-party debtors.
11.9 If a foreign law does not permit retention of title, but allows the seller to reserve other rights to the delivery item, such rights shall be deemed agreed and n-tree solutions Ticketsysteme GmbH may exercise all rights of this kind.
§ 12 Warranty
12.1 For the statutory period of 12 months from the date of delivery, n-tree solutions Ticketsysteme GmbH warrants that all system modules and parts are free from material and manufacturing defects at the time of delivery. The warranty only covers errors for which n-tree solutions Ticketsysteme GmbH is directly responsible. The prerequisite for the warranty is contractual use.
12.2 The presumption rule of § 924 ABGB is excluded. The existence of the defect at the time of delivery must be proven by the customer.
12.3 The goods must be checked for completeness, integrity and functionality immediately upon receipt. Any defects and/or shortages discovered must be reported to n-tree solutions Ticketsysteme GmbH in writing immediately, but at the latest within 3 days of receipt of the delivery, stating the nature and extent of the defect. Hidden defects must be reported in writing immediately after their discovery and can be claimed within a maximum of one year from the date of dispatch. In any case, the goods may only be returned with the express consent of n-tree solutions Ticketsysteme GmbH. Notices of defects are only valid if they are documented in writing (fax is also considered a written notification in this sense).
12.4 If a notice of defects is not made or not made in good time, the delivery shall be deemed to have been accepted without reservation. The assertion of warranty claims or claims for damages, as well as the right to contest errors due to defects, is excluded in these cases.
12.5 In the event of a justified complaint, the defects shall be rectified within a reasonable period of time, whereby the customer shall enable n-tree solutions Ticketsysteme GmbH to take all measures necessary for the investigation and rectification of defects.
12.6 n-tree solutions Ticketsysteme GmbH will, at its discretion, replace the defective component, repair it on site or have it sent to it for repair, or provide a workaround for the defective function in the event of a defect that impairs its functionality and is based on a fault in the design, material or workmanship. All ancillary costs incurred in connection with the repair, such as transportation costs, travel costs, other expenses, customs duties, etc., shall be borne by the customer. In the event of rectification, n-tree solutions Ticketsysteme GmbH shall bear the labor costs (costs for working hours). Replaced parts become the property of n-tree solutions Ticketsysteme GmbH and must be returned to the company.
12.7 The customer is not entitled to remedy the defect himself or have it remedied by third parties. The rectification of defects shall be carried out exclusively by n-tree solutions Ticketsysteme GmbH or by a company commissioned by n-tree solutions Ticketsysteme GmbH within a reasonable period of time.
12.8 In the event that the defect cannot be remedied or the repair is unsuccessful, the customer shall be entitled to a price reduction depending on the type of defect. The customer’s right to demand rescission of the contract is excluded.
12.9 Defects or damage resulting from normal wear and tear and/or operational wear and tear are excluded from the warranty.
12.10 n-tree solutions Ticketsysteme GmbH accepts no liability for errors, faults or damage caused by improper use, operating errors or incorrect use of the contractual products, operation outside the stated specifications, non-compliance with the installation requirements and/or conditions of use by the customer or third parties. Also excluded from the warranty are damages or defects caused by negligent behaviour on the part of the customer, contamination of software components with computer viruses, computer worms or Trojan horses, use of unsuitable organizational means and data carriers – insofar as such are prescribed -, self-installed software and/or processing data, abnormal operating and environmental conditions at the installation site, operation with the wrong type of current or voltage, connection to unsuitable power sources, fire, lightning, explosion or network-related overvoltages, etc., or by other effects for which n-tree solutions Ticketsysteme GmbH is not responsible. or other influences for which n-tree solutions Ticketsysteme GmbH is not responsible.
12.11 Error corrections that become necessary due to cases of force majeure in the customer’s area are not covered by flat-rate fees and will be charged separately.
12.12 Costs for assistance, error diagnosis and error and fault rectification for which the customer is responsible, as well as other corrections, changes and additions are carried out by n-tree solutions Ticketsysteme GmbH against payment.
12.13 If the contractual products or only parts thereof are adapted or modified without the express authorization of n-tree solutions Ticketsysteme GmbH, the warranty claim is automatically lost.
12.14 Work and deliveries subject to warranty shall not extend the original warranty period.
§ 13 Liability and compensation
13.1 The company n-tree solutions Ticketsysteme GmbH is liable for direct personal injury and property damage, insofar as intent or gross negligence can be proven, within the framework of the statutory provisions. Liability for slight negligence is excluded.
13.2 In any case, the amount of compensation shall be limited to the order value. In the case of purchase contracts, the order value is the payment for the delivery of the subject matter of the contract.
13.3 Compensation for damages from loss of data, other consequential damages and financial losses, loss of profit, unrealized savings, loss of interest and damages from third-party claims against n-tree solutions Ticketsysteme GmbH is excluded in all cases.
13.4 Any recourse claims made against n-tree solutions Ticketsysteme GmbH by contractual partners or third parties under the title of “product liability” within the meaning of the PHG are excluded, unless the party entitled to recourse proves that the error was caused in the sphere of n-tree solutions Ticketsysteme GmbH and was at least due to gross negligence.
13.5 A gross violation on the part of n-tree solutions Ticketsysteme GmbH entitles the customer, if the damage does not exceed the typically foreseeable extent, to assert claims for damages against n-tree solutions Ticketsysteme GmbH in the full amount of the loss or damage suffered by the customer as a result.
13.6 The Contractor shall only be liable for damage caused by its vicarious agents or employees pursuant to Section 1313a ABGB if the damage was caused by an act of gross negligence that was absolutely necessary to fulfill the contractual obligations.
13.7 Claims for compensation shall in any case become time-barred three years after the service or delivery has been rendered.
§ 14 Surprising project problems
14.1 Should particular problems arise during the fulfillment of the contract which are surprising for n-tree solutions Ticketsysteme GmbH in the absence of prior notification by the customer, n-tree solutions Ticketsysteme GmbH is entitled, in the case of support services provided by n-tree solutions Ticketsysteme GmbH, at its discretion, to terminate the project against payment for the services provided up to this point in time or, if the project is continued, to demand a postponement of the final deadline and compensation for the increased expenditure.
§ 15 Withdrawal from the contract
15.1 In the event of default of acceptance, bankruptcy of the customer or bankruptcy rejection due to lack of assets, as well as in the event of default of payment by the customer or other important reasons [see also § 2 Clause 2.2], the company n-tree solutions Ticketsysteme GmbH is entitled to withdraw from the contract, insofar as it has not yet been completely fulfilled by both parties. In this case, n-tree solutions Ticketsysteme GmbH is entitled to payment for all services up to the time of withdrawal and to compensation for frustrated expenses.
15.2 If the customer withdraws from the contract without being entitled to do so or if he requests the annulment of the contract, n-tree solutions Ticketsysteme GmbH has the choice of insisting on fulfillment of the contract or agreeing to the annulment.
15.3 Cancellations by the customer are only possible with the written consent of n-tree solutions Ticketsysteme GmbH. If n-tree solutions Ticketsysteme GmbH agrees to a cancellation, it has the right to charge a cancellation fee in addition to the services rendered and costs incurred in accordance with the amount agreed in the individual order. If no cancellation fee is agreed, it shall amount to 20% of the order total.
§ 16 Confidentiality, data protection
16.1 Unless expressly agreed otherwise in writing, the information submitted to n-tree solutions Ticketsysteme GmbH in connection with orders shall not be deemed confidential.
16.2 The company n-tree solutions Ticketsysteme GmbH is entitled to utilize the content and fact of the order in reference lists.
16.3 The company n-tree solutions Ticketsysteme GmbH obliges its employees to comply with the provisions of § 15 DSG 2000.
§ 17 Name or brand imprint
17.1 n-tree solutions Ticketsysteme GmbH is entitled to print its company name or brand name on the printed products and articles to be delivered, even without special authorization from the client.
§ 18 Levies
18.1 All tax liabilities arising from the contractual relationship or the associated activity of the company n-tree solutions Ticketsysteme GmbH, with the exception of income taxes of the company n-tree solutions Ticketsysteme GmbH, are borne by the customer. If a claim is made against n-tree solutions Ticketsysteme GmbH for such charges, the customer shall indemnify and hold n-tree solutions Ticketsysteme GmbH harmless.
§ 19 References
19.1 The customer expressly and irrevocably agrees that its project and the services performed for it may be named as a reference and used for advertising purposes.
§ 20 Printed matter
20.1 Excess or short deliveries of 10% are possible for technical reasons. The quantity actually delivered is invoiced.
§ 21 General provisions
21.1 All agreements, subsequent amendments, supplements, ancillary agreements, etc. must be made in writing to be valid, including the original signature.
21.2 Should a provision in these terms and conditions be or become invalid, this shall not affect the validity of all other provisions or agreements. The invalid provision shall be replaced by a provision that comes as close as possible from an economic point of view.
21.3 The above provisions shall only apply to consumers insofar as the Consumer Protection Act does not provide for other mandatory provisions.
21.4 Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules is excluded. The contract language is German.
21.5 Unless otherwise agreed, the statutory provisions applicable between registered traders under Austrian law shall also apply if the order is executed abroad.
21.6 The exclusive place of jurisdiction for all disputes arising from this contractual relationship is the court responsible for the registered office of n-tree solutions Ticketsysteme GmbH, i.e. the District Court of Bregenz or the Regional Court of Feldkirch. However, n-tree solutions Ticketsysteme GmbH is entitled to bring an action before any court having jurisdiction over the buyer in any way.