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GENERAL TERMS AND CONDITIONS
of the contractor Prof. Dr.hc. Werner Niederwinkler, owner of HSD – HomeShoppingDreams, hereinafter referred to as HSD.
Validity
Basis of contract. HSD concludes contracts and renders services exclusively on the basis of the written offers prepared by HSD, as well as the respective valid version of any descriptions of services included in the offer (e.g. individual documents or general folders), price lists as well as these General Terms and Conditions.
The descriptions of services, price lists and general terms and conditions apply, as far as they are not merely project-specific (e.g. individual documents), for all legal relationships between HSD and the customer and are therefore automatically the basis for all further contract conclusions between HSD and the respective customer in the most current version from the first contract conclusion, even if these price lists, product descriptions and general terms and conditions are no longer expressly referred to.
Future changes. Changes to the descriptions of services, price lists and general terms and conditions of HSD will be communicated to the customer in writing and are deemed to be agreed if the customer does not object within four weeks. As of the validity of the new agreement, the changes to the General Terms and Conditions shall also apply to all other contracts still in progress.
Supplementary agreements. All forms of supplementary agreements, both prior to the conclusion of the contract and during the term of the contract, must be in writing in order to be valid.
Contractual elements on the part of the client. Even if HSD is aware of them, specifications coming from the customer regarding the content of the service will only become part of the contract if they are integrated by HSD into the offer or are otherwise expressly accepted by HSD, for example by reference to these specifications.
Legal elements coming from the customer, such as general terms and conditions or contract clauses, only become effective, even if HSD is aware of them, if they are accepted by HSD with an additional note expressly including these legal texts (such as “General Terms and Conditions accepted”). Otherwise, HSD expressly objects to the inclusion of legally formative elements, such as general terms and conditions or contract clauses, of the client.
Therefore, the mere acceptance by HSD of specifications concerning the service content of the client does not cause an acceptance of legal texts of the client, even if these specifications contain legally formative elements (such as “Our GTC apply.”).
Procedure in case of contradictions. In the event of contradictions between the offer, any descriptions of services (project-specific documents, general documents), any price lists and HSD’s General Terms and Conditions, these shall apply in the order stated. The more individual parts of the contract therefore automatically modify the more general parts of the contract.
In case of contradictions between contractual elements of HSD and contractual elements of the customer, all contractual elements of HSD shall prevail.
Conclusion of contract
Offer by HSD. Offers by HSD to the principal, e.g.: in the form of an individual offer to the principal or a non-individualized offer such as an order form, catalog or web store, are without exception subject to change and non-binding.
Offer by the Client. If the principal places an order on the basis of an offer or also unsolicited, i.e. without a prior offer from HSD, e.g. in the case of additional orders in ongoing business relationships, the principal shall be bound to this order for one week from its receipt by HSD.
Acceptance by HSD. Therefore, the contract is always concluded only by HSD’s acceptance of the order.
The acceptance must always be made in writing, e.g. by order confirmation, unless HSD indicates that it accepts the order, e.g. by taking action on the basis of the order that is apparent to the customer.
A mere confirmation of receipt of the order does not constitute acceptance of the order.
Scope of Services, Order Processing and Cooperation Duties of the Principal
Scope of services. The scope of the services to be provided results from HSD’s written service description resulting from all parts of the contract. Information from other sources not included in the offer (e.g. presentation documents, websites or catalogs) are not part of the service description.
The customer is obligated to check the service description for compliance with his requirements and for completeness. After the order has been placed, changes to the service description are only possible by mutual agreement and may lead in particular to changes in prices, deadlines and dates.
Professional performance. Unless otherwise provided in the written description of services, HSD shall owe professional performance in accordance with the date of submission of the offer. Within the scope of the written description of services, HSD shall have freedom of design in the execution of the services, insofar as several professional options for execution exist.
Interchangeable services. Insofar as this is in accordance with the objectives of the order, HSD shall be entitled to
the service description and to replace services with other services of equal value.
Third-party services. HSD is entitled to perform the services itself or to use the services of competent third parties (third-party services).
Divisible services. In the case of divisible services, HSD is entitled to make partial deliveries.
Forfeiture. The customer shall collect all services ordered from HSD or handed over to HSD for processing in due time. In the event that the services are not collected in due time, HSD shall be entitled to dispose of the services after six months at the expense of the customer.
Dates and Deadlines. Dates or deadlines stated by HSD are non-binding unless they are expressly marked as binding.
Term of Contract. Contracts for an indefinite period of time can be terminated at any time.
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events – in particular default of the customer in the fulfillment of his obligations as well as delays at HSD or HSD’s contractors which are unforeseeable and unavoidable for HSD – extend deadlines or postpone deadlines by the duration of the unforeseeable and unavoidable event plus the duration of the organizational measures necessary in such a case. HSD must inform the customer of this in writing.
Cooperation obligations of the principal. The customer shall provide HSD with all information in writing without delay, without request and in a form that can be further processed and shall provide all services that are necessary for the provision of the services by HSD. This includes in particular the provision of a contact person for the execution of the contract, the provision of documents, materials and equipment, the coordination of order details and the acceptance (release) of partial services and performances.
If the necessity for the provision of information or services by the customer only becomes known during the performance of the services by HSD, the customer shall provide these without delay. The principal himself shall check the information and services provided by him for their suitability, correctness and legality.
The principal is liable for all damages caused by defective, delayed or omitted cooperation of the principal and in particular also for the additional expenses incurred by HSD as a result. If HSD is not able to perform the services as agreed due to defective, delayed or omitted cooperation of the principal, HSD is also entitled, without prejudice to other rights, to interrupt the performance of the service, to postpone other services for other principals and to continue the performance of the services for the principal only after completion of these services, provided that the principal has fulfilled his obligations to cooperate by then, whereby all dates and deadlines are postponed.
If a claim is made against HSD by a third party due to an infringement of rights in connection with information or services provided by the customer, the customer shall also indemnify and hold HSD harmless and support HSD in the defense against any claims by third parties.
Interventions by the principal. If the customer intervenes in the services of HSD in an unauthorized manner and makes changes, he is liable for the resulting additional expenses of HSD, e.g. for inspection, documentation, defect determination, defect allocation, defect rectification.
Inspection obligations of HSD. HSD shall only be liable for ensuring that the services provided by HSD are not illegal per se (e.g. use of a copyrighted work without the consent of the author).
However, HSD has no obligation to legally examine the services provided by HSD for a possible infringement of third party rights or for possible infringements of rights resulting from the type of use planned by the client (e.g. the use of a graphic as a logo). The client must carry out these legal checks himself, in particular with regard to administrative, criminal, competition, trademark, design protection, copyright, personality and data protection law, or have them carried out by an appropriately trained legal expert.
Insofar as HSD points out the necessity of an additional legal examination of services also with regard to other rights or to other risks before placing the order or during the order after new order details become known, the liability for the performance of this legal examination with regard to other rights or for the assumption of these risks in the event that there were duties of clarification or examination on the part of HSD shall pass to the customer. HSD’s performance shall thus be deemed to have been rendered properly and in accordance with the agreement.
Rights to the services. Basically, HSD or HSD’s licensors are entitled to all rights to the agreed services. The customer receives the right to use the services after full payment of the agreed fee to the extent agreed with HSD or predefined by the licensors.
In the event that the scope has not been agreed upon, this shall include the non-exclusive use, which does not include the right to sublicense or pass on to third parties (or affiliated companies), for the client’s own use in the client’s company, whereby the right to edit is limited to the legally indispensable minimum.
Confidentiality & Non-Solicitation
Secrecy. The client shall keep secret all information known to him that is worthy of secrecy concerning HSD, its projects and its other clients and shall not exploit such information for himself or for third parties. This agreement shall remain in force even after the end of the contract. In the event of a breach of this obligation, a contractual penalty in the amount of EUR 50,000.00 per breach shall be paid.
Non-solicitation. The client may not entice away other clients or employees of HSD. This agreement shall remain in force for three years after the end of the contract. In the event of a breach of this
a penalty in the amount of EUR 50,000.00 per violation shall be paid.
Fee
Prices. All prices are quoted ex HSD’s registered office or place of business in euros, including value-added tax at the statutory rate.
Additional services. All services of HSD which are not expressly compensated by the agreed fee, such as in particular additional services agreed upon later, shall be remunerated separately.
Advance on costs. HSD is entitled to demand cost advances to cover its own expenses.
Partial services. HSD is entitled to charge for partial services.
Unjustified withdrawal. In the event that the client withdraws from his order in whole or in part without blatant gross negligence or intentional fault on the part of HSD, HSD is nevertheless entitled to the agreed fee. In this case, HSD only has to take into account savings from additional purchases that have not yet been made. The same applies if HSD withdraws from the contract for an important reason lying in the sphere of the customer.
Price adjustment. In the case of contracts for an indefinite period of time as well as in the case of contracts with automatic extension of the contract period, HSD is entitled to make an appropriate price adjustment annually, taking into account factors such as inflation, consumer and producer price index, collective bargaining agreements, currency fluctuations as well as similar external factors that HSD cannot influence. HSD is also otherwise entitled to make an appropriate price adjustment for individual services after conclusion of the contract if the costs of these services increase by more than 5% without HSD being able to influence this. Consumers are also entitled to a reduction of the fee if the reverse conditions are fulfilled.
Payment
Due date HSD’s invoices are due without any deduction as of the invoice date. As a matter of principle, services will not be rendered until payment has been made in full.
Payability. HSD’s invoices are to be paid within 7 days of receipt of the invoice.
Payability for online business. In the case of online business, HSD’s invoices must be paid when the order is placed.
Retention of title. Until full payment has been made by the customer, a reservation of title in favor of HSD to the goods delivered by HSD shall be deemed agreed upon until full payment of the purchase price and all related interest and costs. In the event of default, HSD shall be entitled to assert rights arising from the retention of title. In this case, the customer agrees to the collection of the goods by HSD. The assertion of the retention of title by HSD does not cause a withdrawal from the contract, unless HSD expressly declares the withdrawal from the contract.
In case of resale of the goods by the buyer, the buyer shall assign his claim against the buyer to HSD for the purpose of security. HSD is entitled to notify the buyer of this assignment.
Default of payment. In the event of late payment, interest shall be payable at the rate of 9% per annum. The buyer shall bear all costs and expenses associated with the collection of the claim, such as, in particular, collection fees or other costs necessary for an appropriate legal prosecution.
Continued default of payment. After unsuccessful reminder by the client with a grace period of at least 7 days, HSD can immediately call due all services and partial services already rendered, also within the framework of other contracts concluded with the client, and temporarily suspend the rendering of services not yet paid for until all outstanding fee claims have been paid in full.
After the fruitless expiration of a further week, HSD is entitled to withdraw from all contracts and to demand compensation for the lost profit in addition to the payment for the services already rendered. Therewith HSD is also entitled not to execute or to discontinue already paid services, if savings result from the discontinuation of the service and to offset the savings against the outstanding claims.
Irrespective of these possibilities, HSD can of course also file a suit with the court immediately after the due date.
Payment by installments. Insofar as HSD and the customer conclude an installment payment agreement, loss of time shall be deemed to have been agreed in the event that even one installment is not paid on time.
Liability
Guarantee. Insofar as parts of the contractor’s performance have a warranty granted by a third party, this warranty shall be asserted directly with the third party (e.g. manufacturer’s warranty).
In the event of a warranty promise by HSD, the period for asserting the warranty claim shall commence upon handover. The warranty claim shall become statute-barred six months after the customer becomes aware of the occurrence of the warranty case, but no later than the expiration of the warranty period. If the contents of the guarantee do not emerge from the guarantee promise, HSD shall be liable for the usually assumed properties.
Warranty. The statutory provisions of warranty law shall apply. In addition, any additional guarantees or customer services granted within the scope of the product description shall apply.
Damages and other claims. Claims for damages and claims based on other liability regulations, in particular recourse claims, of the customer are excluded, unless they are based on gross negligence or intent on the part of HSD.
Excluded from this exclusion of liability are claims based on personal injury and based on other non-dispositive liability regulations.
Protective effect in favor of third parties. It is expressly agreed that this contract shall not have any protective effect in favor of third parties.
Online Dispute Resolution
Online dispute resolution platform for consumers. The EU has established an “Online Dispute Resolution Platform” (ec.eu-ropa.eu/odr) for the settlement of disputes with consumers. HSD decides on a participation in a dispute resolution procedure in the
individual case. For questions regarding dispute resolution, HSD is available at [email protected].
Final Provisions
Applicable law. Austrian law shall apply exclusively to all legal relationships and facts between the customer and HSD, excluding the international rules of reference.
Mandatory consumer law. If the professional or commercial activity of HSD is directed to the consumer’s home country, the protection offered to the consumer by the mandatory legal provisions of the country of residence shall remain unaffected by the agreed applicable law.
CANCELLATION POLICY FOR CONSUMERS
Right of withdrawal. Consumers in distance selling have the right to withdraw from the contract within fourteen days without giving any reason.
Withdrawal period. The withdrawal period is fourteen days
– in the case of a contract for the supply of goods, from the day on which the consumer or a third party designated by him, other than the carrier, has taken possession of the goods;
– in the case of a contract for the supply of several goods ordered by the consumer as part of a single order and delivered separately, from the day on which the consumer or a third party other than the carrier and designated by him has taken possession of the last goods.
– in the case of a contract for the delivery of goods in several partial consignments or pieces, from the day on which the consumer or a third party designated by him who is not the carrier has taken possession of the last partial consignment or piece
– in the case of a contract for the regular delivery of goods over a fixed period of time, from the day on which the consumer or a third party other than the carrier and indicated by him has taken possession of the first goods.
To comply with the withdrawal period, it is sufficient for consumers to send the notice of exercise of the right of withdrawal before the expiry of the withdrawal period.
Declaration of withdrawal. To exercise the right of withdrawal, consumers must notify the entrepreneur (Prof. Dr.hc. Werner Niederwinkler, owner of HSD – HomeShoppingDreams, Estermannstraße 6, 4020 Linz, 0043 676 4902616, [email protected]) by means of a clear declaration (e.g. a letter sent by mail, fax or e-mail) of their decision to revoke this contract. Consumers may use the model withdrawal form below for this purpose, which is, however, not mandatory.
Model withdrawal form. (To revoke the contract, please complete and return this form).
–
An Prof. Dr.hc. Werner Niederwinkler,
Inhaber von HSD – HomeShoppingDreams
Estermannstraße 6
4020 Linz
—
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*) –
Ordered on (*) Received on (*) –
Name of the consumer(s) –
Address of the consumer(s) –
Signature of the consumer(s) (only in case of notification on paper) –
Date –
(*) Delete where not applicable.
Consequences of revocation for goods. If consumers revoke a contract, the Entrepreneur shall repay all payments received by the Entrepreneur from the Consumer, including delivery costs (with the exception of additional costs resulting from the fact that the Consumer has chosen a type of delivery other than the cheapest standard delivery offered by the Entrepreneur), without undue delay and no later than within fourteen days from the day on which the Entrepreneur has received the notification of the revocation of this contract. For this repayment, the Entrepreneur shall use the same means of payment that the Consumer used in the original transaction, unless expressly agreed otherwise with the Consumer; in no case shall the Consumer be charged any fees due to this repayment.
The Consumer shall return or hand over the goods to the Entrepreneur without undue delay and in any case no later than within fourteen days from the day on which the Consumer notifies the Entrepreneur of the revocation of this contract. The deadline is met if the consumer sends the goods before the expiry of the period of fourteen days.
The Entrepreneur may refuse repayment until the Entrepreneur has received the goods back or until the Consumer has provided proof that the Consumer has returned the goods, whichever is the earlier.
The consumer must pay for any loss in value of the goods only if this loss in value is due to a handling of the goods not necessary for the examination of the quality, characteristics and functioning of the goods.
The consumer bears the direct cost of returning the goods.
§ 18 FAGG. According to § 18 FAGG there is no right of withdrawal for consumers for:
– Goods that are made to customer specifications or clearly tailored to personal needs.
– goods that have been inseparably mixed with other goods after delivery due to their nature
– goods that can spoil quickly or whose expiration date would be quickly exceeded
– Goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, provided that their seal has been removed after delivery
– Sound or video recordings or computer software delivered in a sealed package, provided that their seal has been removed after delivery
– newspapers, periodicals or magazines, with the exception of subscription contracts for the delivery of such publications
– alcoholic beverages, the price of which was agreed upon at the conclusion of the contract, but which cannot be delivered earlier than 30 days after the conclusion of the contract and the current value of which depends on fluctuations in the market over which the entrepreneur has no control