TERMS OF USE
General Terms and Conditions of zactrack GmbH
Version: May 2020
1. Parties to the contract:
The contractual relationship is between zactrack GmbH and its client (hereafter "client"). zactrack GmbH exclusively supplies entrepreneurs/businesses (Unternehmer in terms of the Austrian Consumer Protection Act, Konsumentenschutzgesetz, “KSchG”) pursuant to section 1 para 1 fig 1 KSchG. Client guarantees that client actually is an entrepreneur/business in terms of the KSchG and that client does not enter into the contractual relationship with zactrack in order to create the necessary conditions for commencing client’s business operations (Gründungsgeschäft) as set out in section 1 para 3 KSchG. Therefore, zactrck does not sell products and/or services to consumers as defined in section 1 para 1 fig 2 KSchG. If client is a consumer, client may not purchase any products or services from zactrack.
2. Validity:
2.1. Deliveries, services and offers of our company are provided solely on the basis of these general terms and conditions, irrespective of the type of legal transaction. Declarations of intent of our company are on the basis of these general terms and conditions. We do not recognise any adverse terms and conditions of the client unless we have agreed to this in writing with the client. Any deviation from this written form requirement must also be in written form. In the event of a contract being concluded by electronic means, the written form requirement shall be fulfilled only by a secure signature within the meaning of the Signature and Trusted Services Act (Signatur- und Vertrauensdienstegesetz, “SVG”).
2.2. Fulfilment of contract terms on the part of our company shall not be considered as acceptance of contract terms that deviate from these general terms and conditions. Unless expressly agreed otherwise in detail, the general terms and conditions apply for the entire scope of the business relations of our company and the client (customer) as well as for all other legal transactions between the parties to the contract.
3. Contract conclusion:
3.1. Our offers are subject to change. Our offer and project documents may not be reproduced or made available to third parties without our consent. They must be given back by the client if a contract is not concluded.
3.2. Verbal commitments, ancillary agreements and such, in particular those given by sellers, messengers etc., which do not conform with these general terms and conditions or other written declarations of intent of our company, shall not be binding for us. Our brochures, advertisements etc. shall not be part of the contract unless expressly referred to in the written offer.
3.3. Contracts are not considered as concluded until the written order has been confirmed by us in writing (our corresponding order confirmation email is not required to have a secure signature within the meaning of the Signature and Trusted Services Act (Signatur- und Vertrauensdienstegesetz, “SVG”, so that our unsigned mere email is sufficient for order confirmation)or has been fulfilled by us by sending or handing over the goods ordered by the client. Ordered products will always only be dispatched or handed over after the point in time when zactrack has irrevocably and completely received the purchase price; this has to be considered with a view to the period of delivery (in this respect, see item 5.2., below).
3.4. Unless otherwise agreed, our offers cease to be valid 30 days after the quotation date. If offers are sent to us, the tenderer shall be bound to the offer for an appropriate period of at least 2 weeks after the offer is received.
4. Orders:
Orders of the client must be sent in writing to our principal office, using the entire trade name, at the following address:
zactrack GmbH
Schlosshoferstraße 4 / 7 / 1
A-1210 Vienna
or via email: z.office@zactrack.com.
5. Period of delivery:
5.1. Our company endeavours to comply with the agreed deadline for fulfilment (completion) as closely as possible. Unless otherwise agreed, delivery dates are non-binding.
5.2. The period of delivery begins from the first work day on which the client has complied with all obligations which are necessary for the implementation of the order, in particular that the client has fulfilled all possibly required technical and contractual agreements, preliminary work and preparatory measures, and any necessary authorisations (e.g. image rights, rights of use, rights of access etc.) are granted and the payment has completely and irrevocably reached our company account (in this respect, see also item 3.3., above).
5.3. We are entitled to exceed the agreed delivery dates and deadlines by up to one week. After expiry of this period the client may withdraw from the contract after an appropriate period of grace has been set. Delays in delivery and cost increases arising from incorrect, incomplete or subsequently changed data and information or provided documents which are the responsibility of the client are not our responsibility and our company shall not be in default in these cases. Additional costs arising here shall be borne by the client. The client is also obliged to reimburse all losses arising here for the contractor, in particular from lost profit, regardless of the fault of the client.
5.4. Larger orders and orders which contain several units or programs entitle us to provide partial deliveries and partial billing of our deliveries and services.
6. Service changes:
Slight changes or other changes, which are reasonable for our clients, to our service and delivery obligations and also changes which serve the purpose of technical progress and are thus self-justifying shall be considered as approved beforehand.
7. Prices, dispatch, packaging and insurance:
7.1. Unless otherwise agreed, prices are net ex works excluding packaging, freight costs, transport insurance and VAT. Pricing and billing are in €. On request and at the expense of the client, transport insurance can be concluded by us. The costs of this shall be borne by the client.
7.2. Cost increases between the conclusion of the contract and the delivery date, e.g. on account of increases in terms of the collective contract, internal pay settlements or increases in the costs necessary for the provision of services (e.g. for materials, energy, transport, outside services, financing etc.) entitle us to increase or reduce the prices accordingly.
7.3. For repeat orders the prices of the preceding transaction shall apply only if these are expressly confirmed by us.
8. Terms of payment:
8.1. The purchase price becomes due directly after the conclusion of the contract and is to be paid without any deductions and free of charges (in this respect, also see items 3.3. and 5.2., above).
8.2. The above-stipulated terms of payment apply analogously to partial orders.
8.3. In the event of default of payment, we are entitled, from the due date, to claim default interest at 9,2 percentage points above the basic rate of interest. We reserve the right for further claims, in particular the claim for higher interest rates from the title of damages.
8.4. We are entitled to check the credit rating of customers using the common means available; please also see our data protection information in this respect. If this gives rise to doubt about the credit rating of the customer or if there is otherwise a considerable deterioration in the financial circumstances of the business partner, we are entitled to revoke any periods allowed for payment and to make further deliveries only against prepayment or cash on delivery.
8.4. Non-compliance with the agreed payments entitles us to stop the current work and to withdraw from the contract.
9. Rescission of contract:
9.1. Beyond the general legal provisions, we are entitled to withdraw from the contract including with default of acceptance of the client and for other important reasons, in particular the initiation of bankruptcy proceedings on the assets of a contractual partner or dismissal of a bankruptcy petition for lack of cost-covering assets and with initiation of judicial composition proceedings.
9.2. In the event of rescission we are entitled to payment of a lump sum of 20 % of the gross invoice amount. Any claims for damages in excess of this shall remain unaffected.
9.3. If the client is in default of payment, we are entitled to stop all further services or deliveries and are entitled to retain still outstanding deliveries or services and to demand advance payments or securities or to withdraw from the contract.
10. Dunning fees and expenses of collection:
In the event of default of payment, the client has to reimburse us with the arising dunning fees at a lump sum amount of EUR 10.00 plus postage for every sent reminder and for the expense for updating the accounts a lump sum of EUR 3.50 per quarter. The client is also obliged to reimburse all dunning fees and expenses of collection necessary for the appropriate prosecution.
11. Place of fulfilment:
Unless otherwise agreed, the place of fulfilment for deliveries and services is the registered office of our company.
12. Mistake:
Rescission of the contract concluded between our company and the client on the grounds of mistake is excluded.
13. Reservation of title:
13.1. Until the complete payment of the purchase price or compensation, the goods delivered by us shall remain in our possession. Reservation of title of a contractual partner is not recognised.
13.2. In the event of reclamation or redemption of the goods under reservation of title by us, there shall be withdrawal from the contract if this is declared expressly. In the event of redemption of goods, regardless of further claims, any occurring forwarding charges and other charges must be paid to us.
13.3. The goods under reservation of title may not be pledged or assigned by way of security or otherwise assigned by the client. With any foreclosures by non-consensual charging order or other use by third parties, the client is obliged to assert our proprietary right immediately and to inform us.
13.4. The client bears the sole risk for the goods subject to the reservation of title, in particular for the risk of loss or damage.
13.5. The client as conditional buyer assigns to us now the future claims which shall arise for the client from the resale of the goods to a third party. This assignment in advance is on account of payment.
14. Copyright and use:
14.1. Copyrights, trademark rights, domain rights, characteristic rights, know-how, in particular non-protected inventions, commercial experiences, company secrets which become known or disclosed to the client as part of the cooperation, remain the sole entitlement of our company or our licensers. The client has only the right to use the software after payment of the remuneration agreed for this for the client’s own purposes and only for the hardware and software as covered by the contract with the acquired number of licences for simultaneous use at several workplaces. By this contract only authorisation to use the corresponding products is acquired. In particular, distribution or utilisation going beyond use for own purposes by the client are not permitted.
14.2. Every violation of our intangible property rights shall lead to claims for damages, and in such a case there must be full satisfaction.
14.3. We remain the holder of all rights to our intellectual properties including of the corresponding material and also when the client changes these to a contractually permitted extent or combines these with the client’s own programs or those of a third party or mixes them indistinguishably. With such changes or combinations and with the creation of program copies necessary for use as stipulated in the contract the client shall apply a notation referring to our company.
14.4. Labels, ownership information and copyright notations of our company may not be removed or changed by the client. We also reserve the proprietary rights and copyrights to cost estimates, concepts, illustrations and other documents. These documents may also not be used for other purposes, reproduced or made available to third parties and do not give entitlement to reproduce individual parts. The documents, trial software and samples belonging to the offers must be given back without request.
14.5. We confirm that we are entitled to use and pass on the software or accompanying material made available to us for the provision of our service.
15. Warranty, duty to examine and obligation to give notice of defects:
15.1. We shall fulfil warranty claims of the client if there is a rectifiable defect, and here we are authorised to choose between replacement, reparation within an appropriate period or a reduction in price. Claims for damages of the client aimed at redress of the defect can be asserted only when we have defaulted with the fulfilment of the warranty claims.
15.2. The client has to inspect the goods immediately after delivery and within 7 work days at the latest. Defects discovered here shall be indicated to us in writing immediately and at the latest within 3 work days after their discovery and with notification of the type and extent of the defect. Concealed defects must be contested in writing immediately and at the latest within 3 work days after their discovery.
15.3. If a notice of defects is not made or is not made on time, the goods shall be considered accepted. The presumption of defectiveness pursuant to § 924 of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) is excluded.
15.4. For the checking of the objection to claimed defects the client is obliged to grant us free of charge access to the objected to system or its components.
15.5. Service descriptions, specifications or similar documentation compiled for the fulfilment of the order are only commitments of use. The warranty obligation with individual software begins with the program acceptance regulated in more detail in the order.
15.6. The obligation to remedy the defect ceases to apply when the client does not enable us to take all measures necessary for the inspection and the remedy of the defect as well as access to the system. The period for asserting warranty claims is 4 months. Claims for recourse against us pursuant to § 933 b ABGB are excluded.
15.7. Corrections and amendments which are necessary until the agreed delivery or service on account of organisational and programming defects which are our responsibility shall be carried out on our part free of charge.
15.8. Costs for support, diagnosis and elimination of errors and troubleshooting which are the responsibility of the client as well as other corrections, changes and amendments shall be carried out by us only against payment. This also applies for the remedy of defects if program changes, amendments or other actions have been carried out by the client or by third parties.
15.9. We assume no warranty for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational aids and data carriers if these are required, abnormal operating conditions (in particular deviations from the installation and storage conditions) and damages in transit.
15.10. For programs which are changed subsequently by own programmers of the client or third parties there shall be no warranty or liability on the part of our company.
15.11. If the subject of the order is the change or amendment of already existing programs of the client, the warranty refers to the change or amendment. There are no warranty rights for the original program.
16. Voluntary 14-days trial-period together with voluntary right to withdraw for client:
16.1. For product-orders placed in the web-shop at https://www.zactrack.com/web-store, zactrack voluntarily, and without being obliged to do so, grants client a special, product-specific and limited in the function-range voluntary 14-days trial period (with regard to the limitations of the products’ functions and the immediate elimination of the right to withdraw, respectively the immediate expiry of the trial phase in case of unlocking of the products’ full functionalities, see item 16.9., below).
16.2. This limited 14-days voluntary trial period commences
16.2.1. generally on the day on which the client or a third party other than the carrier and indicated by the client acquires physical possession of the goods,
16.2.2. in the case of multiple goods ordered by the client in one order and delivered separately, the day on which the client or a third party other than the carrier and indicated by the client acquires physical possession of the last good, or
16.2.3. in the case of delivery of a good consisting of multiple lots or pieces, the day on which the client or a third party other than the carrier and indicated by the client acquires physical possession of the last lot or piece.
16.3. Until the expiry of the voluntary 14-days trial period, the client is entitled to test the product in a reasonable as well as in an as-gentle-as-possible manner and to withdraw from the contract in case of dissatification (in this respect, also see, however, the products’ limited functionalities and the immediate eleminiation of the withdrawal-right, respectively the immediate expiry of the trial phase in case of unlocking the the product’s functionalities in item 16.9., below).
16.4. In case the client wishes to withdraw from the contract within the trial phase, he/she must inform zactrack of his/her decision to withdraw from the contract via a clear declaration (for example, a letter sent via post, facsimile or securely signed email in terms of the SVG), whereas zactrack’s timely receipt of such a declaration is decisive for preserving the withdrawal-right associated to the trial phase.
16.5. In case the client withdraws from a contract according to this item 16., he/she must return the received product to zactrack immediately and within 14 days after he/she has declared his/her withdrawal at the latest. The return period is complied with when the product is dispatched within this period.
16.6. The client must bear all costs for the product’s return.
16.7. In case of such a withdrawal, the client has to pay to zactrack a compensation for diminished market value of the returned product the any in any case and this also applies if this diminishment of value arises out of the product’s handling required for examining the product’s properties, characteristics and functionality.
16.8. If the client withdraws from a contract according to this item 16., zactrack will refund the purchase price (but not the shipping costs) to the client within 14 days after receipt of the product’s return-consignment. In this case, zactrack will endeavour to use the same means of payment for the refund that the client used for arranging his/her payment; zactrack, however, may still use a different means of payment.
16.9. Limited functionality, immediate expiry of the trial period and immediate elimination of the voluntary withdrawal-right: each product entitled to the voluntary trial period is generally shipped with limited functionalities whereas each such product is accompanied by a code with which the product’s full functionalities may be unlocked (“Unlocking Code”). As soon as the client unlocks the product’s full functionalities (be it with the Unlocking Code or otherwise, e.g. by circumventing the Unlocking Code), the voluntary withdrawal right is immediately eliminated and the trial period expires immediately.
17. Compensation:
17.1. All claims for damages (excluding damage claims for personal injury) against us are excluded in cases of slight and gross negligence. The aggrieved party has to prove the act of slight negligence or gross negligence.
17.2. The limitation period for claims for damages of the client is 6 months after becoming aware of the damage and the liable party. These provisions on compensation also apply when damages caused by defects, consequential damages caused by defects and incidental damages are claimed with the claim for damages. This provision also includes claims for damages pursuant to § 29 of the data protection act 2018 (Datenschutzgesetz 2018, DSG 2018) in conjunction with the General Data Protection Regulation (GDPR) in particular.
17.3. The provisions contained in these general terms and conditions or otherwise agreed provisions on compensation also apply when the claim for damages is asserted as well as or instead of a warranty claim.
17.4. Before connecting or transporting computer products or before the installation of computer programs, the client is obliged to sufficiently secure the dataset already existing on the computer system, otherwise the client shall bear responsibility for lost data and for all losses arising in association with this.
17.5. Compensation for financial losses and consequential losses, lost profits and for losses from claims of third parties against our company is always excluded if legally permissible.
18. Product liability:
Recourse claims within the meaning of § 12 of the product liability law (Produkthaftungsgesetz, PHG) are excluded unless the party entitled to recourse proves that the error was caused within our sphere of responsibility and with at least gross negligence.
19. Non-solicitation agreement:
The contractual partners are obliged to maintain mutual loyalty. They will refrain from any enticement or employment, including via third parties, of employees of the other contractual partner who have worked on the development and implementation of the orders, for the duration of the contract and 12 months after termination of the contract. In the event of infringement, the violating party to the contract is obliged to pay lump sum compensation at the amount of the annual salary of the employee.
20. Non-disclosure:
20.1. The parties to the contract are obliged to maintain secrecy about all instances, of which they become aware during a contractual relationship, of internal business processes of the other contractual partner with respect to third parties including beyond the term of this contract. In the event of infringement, the violating contractual partner is obliged to pay a contractual penalty of 70 % of the order total. Any claims for damages in excess of this shall remain unaffected.
20.2. Our company is entitled, however, to generally carry out advertising with positive results from the contractual relationship so that our activity is announced generally and for potential clients. The client declares agreement to be cited as a reference with presentations and publications.
21. Retention/contractual exclusion of set-off/prohibition of assignment:
21.1. With justified notice of defects, the client, apart from in cases of rescission, is not entitled to retain the entire gross invoice amount and instead may retain only a reasonable amount thereof.
21.2. The client is not entitled to offset own claims against claims of our company.
21.3. The client may assign, pledge or otherwise dispose of claims and receivables to which the client is entitled against our company only with our prior written consent.
22. Event of default:
To the extent that the client’s payment obligations must be in instalments, it shall be agreed that in case of delayed payment of even one instalment all outstanding part services become due immediately without any determination of grace periods.
23. Force majeure:
23.1. an event of “force majeure” particularly is
23.1.1. a military conflict taking place on, or directly affecting, the territory of the Republic of Austria,
23.1.2. revolution, insurrection, acts of terrorism or acts of sabotage by third parties,
23.1.3. diseases, epidemics or pandemics,
23.1.4. strikes, operating shutdowns or lockouts,
23.1.5. floods, earthquakes, fire or natural disasters,
23.1.6. acts and ommissions of governments or other state-leading, respectively state-supportive institutions (also such as note-issuing banks), particularly (but not limited to) if they affect the currency stability or the trade policy,
23.1.7. import or export restrictions or delays, including blockades of roads or other transport routes and delays in customs clearence,
23.1.8. interruption or disruption of zactrack’s supply chain(s) or production processes, including power outages, deficient raw materials, deficient production materials and breakdowns of production machines,
23.1.9. similar events that affect zactrack, zactrack’s devices‘ manufacturers or suppliers.
23.2. In the event of force majeure, the client is not entitled to withdraw from the contract or to terminate the contract otherwise.
23.3. In the event of force majeure, zactrack is entitled to delay deliveries by the period in which an event of force majeure exists and/or which zactrack requires for adapting the merchandise to one or more events of force majeure. This also applies when the event of force majeure occurs during a pre-existing delay. In all such cases, zactrack is not in default.
24. Severability clause:
If individual provisions of these general terms and conditions are or become ineffective, this shall not affect the remainder of this contract. Any ineffective provision shall be replaced by a legally effective regulation which comes closest to the economic effect of the ineffective provision.
25. Data Protection, change of address, changes in the the terms and conditions:
25.1. With regard to zactrack’s processing of your personal data, zactrack’s data protection information applies, which only serves information purposes and which is not a part of the contract.
25.2. The client is obliged to inform us of changes in the client’s residence or business address if the legal transaction as specified in the contract is not fulfilled entirely by both sides. If the event this notification is not provided, declarations shall count as delivered if they are sent to the last notified address.
25.3. Changes to the general terms and conditions shall be considered accepted and are also effective for existing contracts if the client does not object to the changed general terms and conditions within 3 weeks of the corresponding announcement. The announcement of the changed general terms and conditions can be in writing or by electronic means (email). The respective valid general terms and conditions are available on the internet homepage of our company.
26. Choice of law, place of jurisdiction:
Austrian law shall apply, excluding its conflict of law rules. Applicability of UN sales law is expressly excluded. The contractual language is German. Exclusive jurisdiction shall rest with the competent local court for such matters in the city in which our registered office is located.
27. These general terms and conditions:
are available in a German version and in versions in other languages. For the interpretation of the
general terms and conditions the German version must always be consulted and the purpose and intention of the parties must also be ascertained according to this.