AGB - General Terms and Conditions of IT Sentinel GmbH
valid from 01.10.2020
IT Sentinel GmbH (hereinafter referred to as "IT Sentinel")
FN 368709 w, HG Wien1010
Vienna, Wipplingerstrasse 1/DG 1
Telefon: +43 1 53 23 500
Mobile: +43 664 75 12 60 93
E-Mail: [email protected]
1. scope and general
1.1 These General Terms and Conditions (GTC) apply to all legal transactions between IT Sentinel and the Purchaser, provided that the Purchaser operates a business, and the relevant legal transaction is part of the operation of its business ("B2B").
1.2 The version valid at the time of the conclusion of the contract shall be authoritative in each case. IT Sentinel concludes contracts only on the basis of the following terms and conditions. The Purchaser expressly acknowledges that it has taken legally binding notice of these GTC, so that they have become part of the contract. These GTC may only be amended or supplemented by mutual agreement and in writing, whereby the provisions that have not been amended shall remain part of the contract without prejudice.
1.3 These GTC shall also apply to all future contractual relationships, therefore even if not expressly referred to in supplementary contracts.
1.4 Any GTC of the Purchaser shall not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. IT Sentinel expressly objects to the Buyer's GTC. No further objection to the Buyer's GTC by IT Sentinel is required.
1.5 Amendments to the GTC shall be notified to the Buyer and shall be deemed to be agreed if the Buyer does not object to the amended GTC in writing within 14 days; the significance of silence shall be expressly pointed out to the Buyer in the notification.
1.6 IT Sentinel's offers are subject to change and are non-binding.
1.7 IT Sentinel's employees are not authorized to make any agreements that deviate from these GTC or list prices. Any agreements in this regard must be confirmed in writing by IT Sentinel.
2. prices, costs
2.1 All prices are subject to change and are quoted in Euro and exclude VAT, unless otherwise stated. All transport and packaging costs, freight and insurance charges, customs duties, fees and charges shall be borne by the Buyer.
2.2 The statutory value-added tax shall be invoiced additionally at the respective applicable rate
2.3 The prices quoted are "ex works" Incoterms 2010 and do not include the costs of transport, packaging, assembly or installation. All transport and shipping costs incurred shall be charged to the Buyer according to the actual expenditure.
3. terms of payment, prohibition of compensation
3.1 Invoices issued by IT Sentinel are due for payment within 30 days of invoicing, free of charges and deductions. Bank transfers shall only be deemed payment upon receipt of the amount in IT Sentinel's account. Bills of exchange or checks will only be accepted after written agreement, only on account of payment and exclude any discount deduction. Discount interest and all bank charges shall be borne exclusively by the Purchaser.
3.2 In the event of default in payment by the Purchaser, IT Sentinel shall be entitled, at its own discretion, to demand compensation for the damage actually incurred or default interest at the statutory rate. For entrepreneurs, this is 9.2% pa above the base interest rate. IT Sentinel is also entitled to demand compound interest from the date of delivery of the goods in the event of default of payment by the Purchaser. In the event of default in payment, the Purchaser undertakes to reimburse us for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. This includes in any case a lump sum of EUR 40,- as compensation for collection costs according to § 458 UGB. The assertion of further rights and claims shall remain unaffected. In the event that the Purchaser is in default of (partial) payment, IT Sentinel shall be entitled to demand immediate payment of outstanding but not yet due invoice amounts and/or to demand advance payment or the provision of security for future deliveries and services.
3.3 Offsetting against counterclaims of the Purchaser that are disputed by IT Sentinel and not legally established is excluded, as is the exercise of a right of retention without a legally established title or based on claims from other legal transactions.
4. delivery and delay in delivery
4.1 In the event of delivery/shipment of the goods, delivery shall be made at IT Sentinel's discretion by parcel service, mail, rail or carrier. IT Sentinel shall choose the most expedient delivery method.
4.2 IT Sentinel is entitled to make the delivery in parts.
4.3 IT Sentinel shall not be obliged to perform until the Purchaser has fulfilled all its obligations required for delivery (e.g. receipt of the agreed down payment). IT Sentinel shall comply with delivery deadlines and dates to the best of its ability. Unless expressly agreed as binding, they are not binding and are always understood as the expected time of provision and handover to the Buyer. Withdrawal from the contract by the Buyer due to delay in delivery is only possible if a reasonable - at least 4-week - grace period is set. The withdrawal is to be asserted by registered letter. The right of withdrawal shall only apply to the part of the delivery or service for which there is a delay.
4.4 The delivery period shall be deemed to have been complied with if the goods have left IT Sentinel or, in the case of direct deliveries, the factory of the upstream supplier by the expiry of the delivery period or readiness for dispatch has been notified. Subsequent requests for changes and additions by the Purchaser shall extend the delivery period appropriately. The same shall apply in the event of unforeseen obstacles that lie outside the sphere of IT Sentinel and/or its suppliers, such as force majeure, strike, lockout, delay in the delivery of essential raw materials, materials or parts.
4.5 Claims for compensation by the Buyer shall be excluded in all cases of delayed or non-executed delivery, even after expiry of the grace period, except in cases of intent or gross negligence.
4.6 If delivery is not possible as a result of delivery difficulties and/or price increases at IT Sentinel's upstream suppliers, IT Sentinel shall be entitled to demand a
4.7 IT Sentinel's liability for damages caused by delay shall be limited to 0.5% of the value of the delivery in delay, but not more than 5% of the value of that part of the delivery that was not delivered on time.
4.8 Goods not accepted by the agreed delivery date shall be stored for a maximum period of 6 weeks at the risk and expense of the Buyer. The storage charges shall be borne by the Buyer. At the same time, IT Sentinel shall be entitled either to insist on performance of the contract or to withdraw from the contract after setting a reasonable grace period and to dispose of the goods elsewhere. In the event of utilization, a contractual penalty of 20% of the invoice amount (excluding VAT) shall be deemed agreed.
5. acceptance of the goods
5.1 Unless otherwise agreed in writing, the goods shall be delivered ex works. The buyer is obliged to accept the goods. The risk shall pass to the Buyer as soon as the goods have been handed over to the forwarder or other shipping person, in case of default of acceptance by the Buyer as of readiness for shipment. This shall also apply if partial deliveries are made. In the absence of any express agreement to the contrary, the goods shall be deemed to have been sold "ex works" or "ex works" Incoterms 2010.
5.2 The Purchaser is obliged to take delivery of the goods within 7 (seven) days of receipt of IT Sentinel's information that the goods have been made available (notice of readiness). In the event of non-acceptance, IT Sentinel may exercise its statutory rights arising from default of acceptance.
5.3 If IT Sentinel claims damages for failure to take over the goods on time, such damages shall generally amount to 10% of the purchase price. The compensation shall be set at a correspondingly higher or lower amount if
6. retention of title
6.1 IT Sentinel retains title to the delivered goods until the purchase price has been paid in full. The Buyer bears the entire risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.
6.2 In the event that the goods subject to retention of title are processed or combined, IT Sentinel's ownership shall extend to the new item.
6.3 The Buyer shall be entitled to resell the delivered goods in the ordinary course of business. Until the purchase price has been paid in full, the Buyer shall assign to us all claims and security interests to which it is entitled from the resale on account of payment. He is obliged to note this assignment in his books. In the event of the Purchaser's default in payment, IT Sentinel shall be entitled to notify the resellers of the goods, which the Purchaser shall disclose, of the assignment and demand payment to IT Sentinel.
6.4 Any pledging or transfer by way of security of the goods delivered under retention of title in favor of third parties is not permitted without IT Sentinel's consent. The Purchaser must notify IT Sentinel immediately of any seizure by third parties. Recognition of balances does not affect the retention of title, nor does the surrender of bills of exchange or checks until they have been properly and actually cashed. If IT Sentinel makes use of its retention of title and has to take back the goods, the credit for the goods taken back due to the retention of title shall be made taking into account a price reduction appropriate to the storage period, the wear and tear as well as Page 3 of 6 the other circumstances, but at least 30% of the invoice value. The customer undertakes to notify us before filing for insolvency proceedings so that we can take over goods delivered under retention of title and which are our property.
6.5 In the event of default in payment, IT Sentinel shall be entitled to seize the goods, whereby this shall not suspend the Buyer's obligations under the purchase agreement, in particular to make payment. In the event of seizure of goods subject to our retention of title, the Buyer shall immediately inform IT Sentinel in detail. Likewise, segregation of the goods due to an imminent insolvency encumbrance of the goods during the existence of the reservation of title is not permitted. The goods delivered under retention of title shall be properly stored and adequately insured against all risks foreseeable in the ordinary course of business.
7. notice of defects, warranty, compensation, secondary obligations
7.1 Defects shall be notified in writing immediately after receipt of the goods, at the latest within 8 days, hidden defects within 3 days after discovery. The complaint must be sufficiently substantiated and supported by evidence.
7.2 The warranty period shall be a maximum of 12 months from acceptance. The existence of defects shall be proven by the Buyer. § 924 ABGB and § 933b ABGB shall not apply. For goods purchased second-hand from IT Sentinel, the warranty period shall be reduced to six months.
7.3 Minor technical changes and deviations from drawings and catalogs shall be deemed approved in advance.
7.4 In the event of justified defects, the warranty shall be limited to improvement, new delivery or supplementary delivery of what is missing. Several rectifications and replacement deliveries are permissible. Claims for conversion and price reduction are excluded. The warranty shall expire if the Purchaser or a third party not authorized by IT Sentinel has made changes or repairs to the goods.
7.5 IT Sentinel's warranty obligation shall not apply if operating or maintenance instructions are not followed, the goods are exposed to extreme dirt, moisture or heat, the equipment is connected to unsuitable, inadequate, non-standard or non-approved mounting structures or cabling and power systems, modifications are made to the delivered goods, parts are replaced or materials of use are used which do not comply with the original specifications or which place excessive stress on the goods.
7.6 IT Sentinel's warranty obligation shall furthermore lapse if the Purchaser opens the goods in breach of a seal (or sealing) or due to atmospheric discharges, overvoltages and chemical influences.
7.7 In order to perform the services under the warranty, the Purchaser shall deliver the goods to IT Sentinel and collect them from IT Sentinel at its own expense and risk. If the Purchaser insists on on-site repair, the travel costs will be invoiced.
7.8 If the order confirmation contains a warranty promise (in any case, this is only a "non-genuine warranty agreement"), this shall in no case include wear parts (such as seals, etc.) or damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage. The warranty promise is to be understood in such a way that IT Sentinel is liable for defects (except for the cases listed above on page 4 of 6) that occur within the agreed warranty period after handover and are claimed within this period.
7.9 IT Sentinel shall not be liable for damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage by the Purchaser.
7.10 Insofar as this does not violate mandatory law and insofar as nothing to the contrary is regulated in these terms and conditions, IT Sentinel shall only be liable for compensation for damage caused by gross negligence or intent. However, this limitation of liability does not apply to compensation for personal injury. IT Sentinel is not liable for indirect damages, lost profits, loss of interest, missed savings, consequential and financial damages and damages resulting from third-party claims. In the event of gross negligence, liability is limited to the value of the delivery of goods, but not more than the amount covered by IT Sentinel's insurance.
7.11 The Purchaser must provide evidence that the damage is the fault of IT Sentinel.
7.12 Irrespective of any fault on the part of IT Sentinel, any liability on the part of IT Sentinel in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and under the Product Liability Act shall remain unaffected.
7.13 Recourse claims within the meaning of Section 12 of the German Product Liability Act (Produkthaftungsgesetz) are excluded unless the Purchaser proves that the defect was caused within the sphere of IT Sentinel and was at least due to gross negligence.
8. disposal of waste electrical and electronic equipment
8.1 If the goods are electrical and electronic equipment for commercial purposes within the meaning of § 10 of the Ordinance on Waste Electrical Equipment (EAG-VO), the Buyer shall bear the obligation to finance the collection and treatment of waste electrical and electronic equipment within the meaning of the Ordinance on Waste Electrical Equipment.
8.2 The Purchaser shall provide IT Sentinel with all information to enable IT Sentinel to fulfill all obligations as manufacturer/importer under the WEEE Ordinance, in particular those under Section 11 of the WEEE Ordinance.
8.3 The Purchaser shall be liable to IT Sentinel for all damages and other financial disadvantages incurred by IT Sentinel as a result of the Purchaser's failure to fulfill or defective fulfillment of the financing obligation as well as other obligations pursuant to clause 8. The burden of proof shall be on the Purchaser.
9. data protection
9.1 The Purchaser and IT Sentinel are obligated to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (DS-GVO) and any other statutory confidentiality obligations.
9.2 IT Sentinel processes the personal data required for the purpose of fulfilling the contract. The detailed data protection information (data protection notice) pursuant to Art. 13 ff DS-GVO can be found on the homepage at: https://deki.ai/datenschutz
9.3 The Buyer shall be obligated to take all necessary measures under data protection law, in particular those within the meaning of the DS-GVO (e.g. obtaining the declaration of consent of the persons concerned).
10. place of jurisdiction/choice of law/language of contract
10.1 The exclusive place of jurisdiction for all disputes arising from and in connection with the purchase contract and these GTC shall be the competent court in Vienna.
10.2 This contract shall be governed by Austrian substantive law, excluding the conflict of laws rules of private international law (e.g. IPRG, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods.
10.3 The contractual language is German.
11. partial invalidity
Should any provisions of this contract be legally ineffective, invalid and/or void or become so in the course of their duration, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the contracting parties undertake to replace the legally ineffective, invalid and/or void (legally ineffective, invalid and/or void) provision with a provision that is legally effective and valid and corresponds in its economic effect to the replaced provision - as far as possible and legally permissible.
12. final provisions
12.1 All declarations of a legally binding nature based on this contract shall be made in writing to the address of the respective other contracting party last notified in writing. If a declaration is sent to the address last notified in writing, it shall be deemed to have been received by the respective contractual partner.
12.2 The designation of the headings chosen for the individual chapters is solely for the purpose of clarity and shall therefore not be used for the interpretation of this Agreement.
12.3 The assignment of individual rights and obligations under these GTC and the purchase agreement shall only be permitted with the express written consent of the other contracting party.
13. consent pursuant to § 107 TKG
The Purchaser consents to receive messages from IT Sentinel or from companies commissioned by IT Sentinel for this purpose within the meaning of Section 107 of the Telecommunications Act (TKG) for advertising purposes. This consent may be revoked by the Purchaser at any time.