general terms and conditions
1.1. The present general terms and conditions are effective for all activities and all contracts that JM-DATA Telekom GmbH and JM-DATA GmbH, hereinafter referred to as JM-DATA, carry out within their company. In particular, the present terms and conditions irrevocably exclude all other purchasing, sales or general terms and conditions of contract partners, even if those terms should determine the ineffectiveness of conflicting general terms and conditions.
1.2. Deviating conditions or general terms and conditions of the buyer or seller or contractual partner are only effective if they have been confirmed in writing by JM-DATA. The same applies to verbal agreements and side agreements made by employees.
1.3. With the order confirmation to JM-DATA, the seller or provider acknowledges, with the placing of the order to JM-DATA, the buyer or client acknowledges the general terms and conditions of business, purchase, sale and delivery for the duration of the entire as well as the future business relationship.
1.4. Should parts of these general terms and conditions be void or illegal, the remaining conditions remain unaffected.
1.5. It is expressly agreed that in such a case the interpretation that comes closest to the intent of this contract shall apply.
1.6. The place of jurisdiction is the competent court in Linz, Austria. Only Austrian law applies as agreed. (until April 30th, 2021 place of jurisdiction: Vienna, inner district)
2.1. For reasons of clarity, the following terms are used:
2.1.1. JM-DATA both as buyer, seller or intermediary or IT service provider / provider = JM-DATA
2.1.2. Buyer / reseller / user / client (people who order from or through JM-DATA) = buyer
2.1.3. Seller / supplier / manufacturer (persons from whom JM-DATA orders on behalf of others or on their own) = seller
3. Offers and conditions / specifications:
3.1. JM-DATA creates written offers without exception.
3.2. JM-DATA remains in the word for 7 days with a written offer, unless the offer was agreed non-binding.
3.3. Verbal offers are always non-binding, verbal subsidiary agreements are exclusively ineffective.
3.4. The information contained in catalogs, brochures and the like, regardless of whether JM-DATA only uses these documents or whether they originate from it, are only authoritative if express reference is made to them in the offer.
3.5. In the case of the creation of software solutions and / or data and network maintenance by JM-DATA, the buyer undertakes to create a complete specification sheet before the conclusion of the contract and to hand over a precise technical description of the hardware and software provided at least 14 days before the conclusion of the contract.
3.6. If point 3.5 is not fulfilled by the buyer, JM-DATA is not liable for any violations of the warning obligation and, moreover, only in the case of proven deliberate intent.
3.7. Only with alternate signing of the specification is a possibly concluded contract for the creation and connection of software as well as the takeover of data and software maintenance in network operation by JM-DATA accepted as binding. This point of the contract is essential.
4. Cost estimates:
4.1. JM-DATA provides cost estimates exclusively for a fee. Nevertheless, it is expressly stated that in this case, too, the correctness within the meaning of § 5 KSCHG is not guaranteed. The buyer was demonstrably informed of this fact prior to the conclusion of the contract.
4.2. Cost estimates from sellers to JM-DATA are always expressly guaranteed to be free of charge and correct.
5. Conclusion of a contract:
5.1. The contract is concluded by returning the company signed offer.
5.2. Otherwise, the contract is deemed to have been concluded when the order confirmation signed by JM-DATA is sent or the ordered goods are handed over to the carrier by JM-DATA or a third party on behalf of JM-DATA.
5.3. If the buyer places an order on the basis of a telephone order placed by the buyer, the contract is deemed to have been concluded when the ordered object of the contract is handed over to the post office or train station or another carrier. The buyer entitles JM-DATA to use any other recognized freight forwarder or deliverer for shipping in addition to post and rail.
6. Fulfillment or place of fulfillment:
6.1. The place of performance is the agreed place of performance. If this has not been agreed, the place of performance is the headquarters of the JM-DATA company.
6.2. JM-DATA is entitled to have the contract carried out by third parties.
7. Fulfillment time / delivery period / contract duration
7.1. The delivery must take place at the agreed time.
7.2. If the buyer is obliged to provide technical, commercial or other preliminary work, he must inform JM-DATA by registered letter of the fulfillment of this preliminary work.
7.3. Unless a fixed delivery date has been confirmed by JM-DATA, the delivery period begins at the latest of the following times:
7.3.1. Date of the order confirmation
7.3.2. Date of fulfillment of all technical, commercial and / or other agreed preliminary work incumbent on the buyer
7.3.3. Date on which JM-DATA receives a deposit or security or information to be paid prior to delivery of the contractual item according to Section 7.2.
7.3.4. In the case of a contract, the contract is concluded for an indefinite period. The contract can be terminated by both contracting parties with a 3-month notice period at the end of each year. Reference is expressly made to the reasons for termination under point 12. This does not apply if other contract terms have been defined in the contract. An exception to this is the JM-ESIG service (invoice signing), in which case JM-DATA can terminate the contract at the end of the month with a 1-month notice period.
8. Period of grace in the event of JM-DATA delayed delivery:
8.1. In cases for which JM-DATA is not responsible, the buyer grants a grace period of 3 weeks in the event of a delay in delivery.
8.2. Reference is expressly made to item 13.11.
8.3. JM-DATA does not grant sellers a grace period.
9. Acceptance of the product:
9.1. Time of acceptance:
9.1.1. Unless otherwise contractually agreed, a product sent to the buyer by JM-DATA is deemed to have been accepted when it is handed over to the carrier and the warranty period begins at this point in time.
9.1.2. A product picked up by the buyer from JM-DATA is deemed to have been accepted upon acceptance.
9.2. The subject of the contract is deemed to have been accepted by the buyer free of defects if JM-DATA does not receive a detailed written notice of defects within 8 days of delivery or acceptance.
9.3. A service provided in the context of software and network maintenance is deemed to have been accepted with proof of proper operability. The ability to run will be determined on the day after the written notification of the completion of the commissioned creation and / or modification work by the contractual partners on the basis of the specification sheet. The service is also considered accepted if the buyer / client uses or could use the service provided within 8 working days without objection.
9.4. When integrating software and / or hardware components provided by the buyer / client, a notification of defects does not prevent the determination of the operability, if
9.5. JM-DATA expressly advised upon conclusion of the contract that compatibility cannot be guaranteed and / or
9.6. No source codes or complete connection guidelines were provided by the client before the contract was concluded.
10. Danger / transport risk:
10.1. As far as it concerns buyers, orders, etc. of the JM-DATA towards a seller, the goods travel from this to JM-DATA and in the case of a possible return, regardless of the reason for this, at the expense and risk of the seller.
10.2. In relation to the buyer, the goods travel from JM-DATA to the buyer and also in the event of a return, regardless of the reason for this
10.3. Costs and risks of the buyer who, in the case of a return, has to choose the same form of dispatch as was chosen when the goods were sent. In the event of a return, the buyer must ensure adequate insurance.
10.4. In the case of the dispatch of goods by JM-DATA to the buyer using the post office, rail or forwarding agent / carrier, the risk is transferred to the buyer when the goods are handed over to the carrier.
11. Prices, terms of payment, default of payment:
11.1. Unless otherwise stated, all prices do not include statutory sales tax.
11.2. Price agreements only apply to the individual order. Repeat orders by the buyer count as new orders.
11.3. In the case of a contract for software maintenance, dedicated lines, internet connections, television contracts, telephony contracts, combination products, other contracts, JM-DATA is entitled to the agreed annual fee by 4% every year, but at least by the officially announced inflation rate as of December 31. to increase every year.
11.4. The prices shown in the offer are based on the calculation bases and price lists of the manufacturers or distributors available at the time of the offer.
11.5. If these changes demonstrably by the time the contract is concluded, JM-DATA is entitled to adjust the prices upwards. Only in the event that the buyer is a consumer within the meaning of the KSchG, in the event of a reduction in prices according to the calculation basis, a downward price adjustment will take place in any case.
11.6. With regard to all invoices sent to it, JM-DATA is entitled to deduct a 3% discount if payment is made within 14 days.
11.7. Invoices sent by JM-DATA are due immediately upon receipt, without any deduction. A goal is only considered agreed if this is expressly confirmed in writing by JM-DATA.
11.8. When sending goods, JM-DATA always sends them cash on delivery. The dispatch of goods by the seller to JM-DATA using cash on delivery is expressly excluded.
11.9. In the event of default, 12.5% default interest applies to the buyer and 5% default interest to the seller.
11.10. Payments are to be made to the account to be disclosed by JM-DATA with the effect of discharging the debt, excluding any other paying agent.
11.11. Any acceptance of checks or bills of exchange is always only on account of payment. All related expenses are borne by the buyer.
12. Withdrawal and termination:
12.1. JM-DATA is entitled to terminate the contract by registered letter with immediate effect if the seller behaves contrary to the contract despite a written request, in particular if performance deadlines are exceeded by more than 3 days for whatever reason. Any claims for damages remain unaffected.
12.2. JM-DATA is entitled to withdraw from the contract if
12.2.1. the buyer fails to meet his contractually agreed advance performance obligation despite setting a grace period of 5 days.
12.2.2. Justified concerns arise about the solvency of the buyer and, despite the request of JM-DATA, he neither makes an adequate advance payment nor provides a suitable security deposit.
12.2.3. Insolvency proceedings are opened against the assets of the buyer or the seller or a corresponding application is rejected due to insufficient assets.
12.3. Irrespective of any claims for damages, JM-DATA is entitled, in the event of a withdrawal, to invoice partial services already provided in accordance with the contract. JM-DATA is also entitled to demand that deliveries that have already been made be returned at the buyer’s expense.
12.4. At the end of the contract or the termination, for whatever reason, the seller or the buyer bears the JM-DATA risk and costs of the return of the subject matter of the contract, but never the JM-DATA.
12.5. Failure by JM-DATA to comply with delivery deadlines and delivery dates or completion dates does not entitle the buyer to withdraw from the contract or to pay compensation if the non-compliance is due to circumstances that are independent of JM-DATA’s will (delivery delays by the suppliers, strikes, business interruptions, etc. .). If JM-DATA is to blame for the delay, it is only liable in the event of willful intent and gross negligence.
13. Warranty, guarantee:
13.1. JM-DATA provides a guarantee for defects for a period of 6 months from acceptance (see point 9).
13.2. In the event of a claim under the guarantee, the buyer is obliged to deliver the subject matter of the contract to the headquarters of JM-DATA at his own expense and risk. The guarantee extends to the elimination of the defect, the free replacement of the defective parts, as well as the necessary working time. JM-DATA reserves the right to exchange the respective subject matter of the contract instead of rectifying the defect.
13.3. However, a warranty claim only arises if the buyer has reported the defect to JM-DATA immediately in writing within 8 days. In order to remedy defects, the buyer has to enable JM-DATA to take all measures necessary to investigate or remedy defects in the event of any other loss of his entitlement.
13.4. The seller guarantees that JM-DATA will be free of defects and undertakes to perform the guarantee and to remedy defects within the guarantee period of one year from the time of the sale or transfer of the subject matter of the contract by JM-DATA to a buyer, if the products delivered by the seller were resold to the buyer without further processing by JM-DATA.
13.5. Furthermore, the seller undertakes to hold JM-DATA completely harmless and harmless in the event of consequential damage.
13.6. JM-DATA is entitled to have the guarantee provided by third parties.
13.7. If JM-DATA discovers a defect for which JM-DATA is responsible based on the terms and conditions, then JM-DATA is only obliged to provide the buyer with a defect-free contractual item within a reasonable period of time. In addition, JM-DATA has no obligation or liability whatsoever.
13.8. JM-DATA is expressly entitled to meet price reduction or cancellation requests by exchanging goods that are free of defects or adding what is missing. Price reduction and / or cancellation claims by the buyer against JM-DATA are therefore expressly excluded.
13.9. JM-DATA is only liable for damage outside the scope of the Product Liability Act in the event of intent, but not in the case of gross negligence.
13.10. The liability of JM-DATA for slight negligence is also excluded, as is the replacement of consequential and financial losses, savings not achieved, loss of interest and claims by third parties.
11/13 In the event of a delay in delivery by JM-DATA up to a total of 3 weeks, the buyer waives all claims derived from this.
13.12. If circumstances arise that make delivery impossible regardless of the will of JM-DATA, in particular delivery problems or the impossibility of (partial) deliveries from suppliers to JM-DATA or directly to the buyer, JM-DATA is required to comply released from the contract. In such a case, JM-DATA is entitled to make partial deliveries, with each partial delivery being considered an independent contract.
13.13. Insofar as the purchaser / client provides in the context of all contracts (software maintenance, network maintenance, internet contracts, etc.), JM-DATA is not liable for defects in these products, neither for the functionality nor the correctness of the data transferred internally, nor for the compatibility . JM-DATA has no obligation to examine if no complete documents have been submitted by the buyer (see point 3.6)
13.14. If JM-DATA acts as a provider, JM-DATA is in no way liable for information or content of any kind that is installed or programmed by the user or third parties on their behalf and made available to third parties via the Internet or other electronic links.
13.15. JM-DATA reserves the right to charge the seller for any manipulations, services, configurations, etc. if the goods delivered have defects, defects or other damage (this applies to the entire guarantee and warranty period). The hourly rate is indicated here, index-secured, at EUR 150.00 (as of October 2005) (+ 100% night surcharge and weekend surcharge).
14. Rights of retention, set-off and assignment rights or prohibitions:
14.1. The buyer is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or other complaints or to submit a set-off statement due to claims on his part – whether alleged or established.
14.2. Furthermore, the buyer is prohibited from transferring this contract, assigning rights and transferring obligations from this contract, to whomever, without the written consent of JM-DATA.
14.3. JM-DATA has unlimited offsetting entitlement.
14.4. An assignment of the delivery claim on the part of the buyer to third parties is only permitted with the consent of JM-DATA. JM-DATA, but not the seller, is entitled to assign trade accounts receivable for financing purposes.
15. Disclaimer of Liability
15.1. JM-DATA assumes no liability whatsoever for the suitability or usability of the products and goods it offers or mediates.
15.2. In particular, no liability is accepted for any improper use or application.
16.1. The buyer is expressly prohibited from changing the subject of the contract – in whatever form – without the written consent of JM-DATA.
16.2. The buyer is not entitled to pass on the subject of the contract or parts thereof to third parties – except for operation and use in accordance with the contract.
16.3. In the event that the contractual partner of JM-DATA contravenes the provisions of Item 16, a penalty of EUR 7,267.30 applies regardless of the actual damage.
17. Retention of title and utilization
17.1. The delivered goods remain the property of JM-DATA until the purchase price has been paid in full, including all ancillary fees. The purchaser hereby irrevocably assigns to JM-DATA as a precaution the claims arising in the event of a resale or transfer of the contractual item to third parties for any other reason as well as his claim to surrender due to reserved ownership and hereby accepts the assignment.
17.2. The retention of title by JM-DATA also extends to new materials created through treatment or processing or combination, which apply to JM-DATA and to which JM-DATA has ownership or co-ownership according to the processing or combination A share of the value of the processing acquired at the time of processing without the need for a special legal act.
17.3. If the buyer is in default of payment or if he does not fulfill his obligation under the retention of title, JM-DATA is entitled to demand the object of purchase from the buyer and to sell the object to the best possible free hand. The buyer bears all costs of taking back and disposing of the object of purchase.
18. Special provisions for consumers:
18.1. Points 1.2, 9.2, 12.2.2, 12.4, 13.3, 13.9, 15.1, 16 and 17.3 of these general terms and conditions do not apply to consumers.
18.2. The following points of these general terms and conditions apply to consumers with the following restrictions:
18.2.1. To 3.3 Oral side agreements are valid.
18.2.2. Re 10.2: There is no obligation to take out insurance. The return is not at the expense of the consumer.
18.2.3. Regarding 12.5 JM-DATA is liable for delays even in the case of slight negligence
18.2.4. Re 13.2: The warranty is fulfilled at the place of handover, at the domestic destination of the shipment or, if the requirements of Section 8 KSCHG are met, at the installation or installation site;
18.2.5. Re 13.9: JM-DATA’s exclusion of liability outside the scope of the Product Liability Act is limited to slight negligence;
18.2.6. Re 14.1: Offsetting is permissible after a judicial determination or acknowledgment of the defect by JM-DATA.
18.2.7. Re 14.4: An assignment of the delivery claim is permissible.
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