GTC
General Terms and Conditions (hereinafter: GTC) of Selmo Technology GmbH as amended on 02/01/2024
The GTC below are a component of every Contract between a business owner (hereinafter: Customer) and Selmo Technology GmbH (hereinafter: Selmo) FN 518913 h, Packerstraße 131 a, 8561 Söding-St. Johann and apply to the provision and use by the Customer of the software offered by Selmo. Therefore, Selmo recommends that the GTC be read with care:
- Declarations and duties of the Customer
1.1. The Customer declares that it is a business owner as defined by Sections 1–3 Austrian Commercial Code (UGB), that this legal transaction is part of operating its business, and that the Customer is thus acquiring the software for business purposes.
1.2. The Customer is obligated to indicate the data requested at the conclusion of the Contract and to do so completely and in accordance with the truth. The data that is provided is processed using automation-supported data processing. False information may result in the Customer being liable. The Customer itself must ensure that the scope of the order is in line with its requirements.
1.3. If the Customer’s data changes (e.g. change of company name, business address, etc.), the Customer is obligated to immediately notify Selmo of this/these change(s) by email with proof of delivery.
1.4. The Customer is informed that Selmo’s software is not provided with appropriate security mechanisms in order to prevent unauthorized third-party access. Therefore, as soon as the software has arrived in the Customer’s sphere of influence, the Customer is obligated to take precautionary measures against unauthorized third-party access corresponding to the current state of technology regarding unlawful destruction by third parties and regarding data loss. The Customer must immediately notify Selmo of unauthorized access or third-party use of the software covered by the Contract and must do so by email with proof of delivery. - Formation of the Contract and GTC
2.1. Ordering by clicking on the button “Buy now” on the part of the Customer via the online shop is a binding purchase offer of the Customer, which can be accepted by Selmo by means of an order confirmation by email or by delivery. A legally valid Contract is formed when the order confirmation reaches the Customer or upon delivery.
2.2. Selmo declares that it will only enter into Contracts based on these GTC. The Customer’s general terms and conditions will not become a component of the Contract, and Selmo is not required to make a special declaration thereof. Any departure from the GTC requires a separate, written agreement between the Contractual Partners. - Intangible property rights, rights of use, the subject of the Contract, and delivery
3.1. It is pointed out that Selmo or the licensor is due all required licenses, literary property rights, and rights of realization for provision and transfer of use of the contractual services. These also remain solely with Selmo or the licensor. The Customer merely acquires a right of use in line with the following provisions.
3.2. In the event of delivery or handover of software, the Customer acquires the non-exclusive right generally for an unlimited period to use the software for its company’s purposes. Any limitation of this right of use must be stated in a separate agreement based on these GTC. Current user documentation along with installation instructions shall be provided to the Customer at delivery.
3.3. The source code of the software is not the subject of the Contract and remains with Selmo. Analyzing or translating the source code into other programming languages is not permitted.
3.4. The Customer is authorized to create backup copies of the software that is the subject of the Contract for archiving and data backup purposes and merely for company internal purposes provided that these purposes are mandatory for proper use of the software. These backup copies may not be further transferred to third parties under any circumstances.
3.5. The Customer is not authorized to rent the software that is the subject of the Contract to a third party with or without payment, i.e. to lease or loan it.
3.6. Resale of the (already used) software that is the subject of the Contract to a third party is only permissible under the restricted conditions below:
• The software may not be resold to any third parties who are Selmo’s direct or indirect competitors.
• Selmo must be given immediate notice by the Customer of the name and address of the third party after consent of the third party has been obtained.
• Immediately after the resale, the Customer must permanently and irreversibly delete from its data carriers and data storage all (backup) copies and all process models generated by the software that is the subject of the Contract or must make the copies and process models unusable.
3.7. If the Customer violates the above-stated provision of Item 3.6., Selmo is authorized to immediately dissolve the Contract, and the Customer is liable to Selmo for all damage from the contractual violation including lost profits. - Price and payment terms
4.1. All prices are net prices to which the applicable statutory value-added tax must be added. Any contractual fees shall also be invoiced to the Customer separately.
4.2. The invoices provided by Selmo are due to be paid immediately and in full.
4.3. For services that are performed at the explicit wish of the Customer at its business location or headquarters, the Customer must separately bear the costs incurred for travel to and from the business location or headquarters, for the travel time, and for Selmo’s employee’s stay.
4.4. In the event of contracts that are geared toward performed recurring services, the Customer provides its consent now to inflation-adjusted fee increases based on the CPI 2020, whereby the beginning month for the calculation is the month of conclusion of the Contract. Value changes are only taken into account if they do not exceed or fall below 10 (ten) percent of the fee. Selmo is obligated to notify the Customer of any inflation-adjusted value increase at least 1 (one) month in advance.
4.5. In the event of default in payment, the Customer is obligated to pay Selmo default interest amounting to 10 (ten) percent p.a. as well as to pay Selmo reminder fees necessary for appropriate legal action including standard legal fees. - Installation and maintenance
5.1. Selmo is not responsible for proper installation of the software that is the subject of the Contract, and it is the Customer’s responsibility. During installation, the Customer must comply with any guidelines provided by Selmo.
5.2. Selmo reserves the right to adjust the provided software by updates that correspond to technical and legal circumstances. - Warranty and liability
6.1. A defect only exists if the Customer’s use of the software regarding its scope of delivery or its functioning is substantially affected.
6.2. A defect especially does not exist if there are merely temporary disruptions or failures.
6.3. Disruptions or failures that are caused by
• improper usage,
• the Customer or a third party adapting or accessing the software, or
• repairs and/or changes by the Customer or a third-party,
do not constitute defects, and Selmo assumes absolutely no liability for any legal reason whatsoever.
6.4. The Customer is obligated to check the delivered software including the provided documentation for completeness and functionality. Any defects that are determined by this must be claimed immediately in writing by email to Selmo with proof of delivery, and the defect being claimed must be described as precisely as possible. If the Customer does not properly comply with its obligation to provide immediate notice of defects, the warranty claims lapse.
6.5. If the Customer does not install a provided update within the time period provided for it, which Selmo shall give separate notice of in each case, Selmo is not liable for defects resulting from the update that was not installed or not properly installed if the Customer was informed in a timely manner about the necessity of the update.
6.6. All damage claims for damage that Selmo merely caused by slight negligence are excluded unless the damage is in the form of personal injuries (impairment of physical integrity). Thus, Selmo is only liable – with the exception of personal injury – in cases of gross misconduct (intent and gross negligence).
6.7. Selmo’s liability for what are known as “indirect damages” (lost profits, costs from interruptions to business operations, etc.) is hereby excluded. Selmo also assumes no liability for damage caused by acts of God, chance, or that occurs outside our sphere of influence.
6.8. Selmo assumes no liability for non-foreseeable (“atypical”) consequential damages.
6.9. Selmo assumes no liability for reconstruction of data from data material (data backup).
6.10.In the event of any damage, the Customer is obligated to take measures for preventing and reducing damage. This includes creating internal company backup copies on a regular basis.
6.11.The deadline for all claims under warranty is 12 (twelve) months beginning with the delivery of the software. This deadline also applies to long-term commitments, and extensions of the long-term commitments do not lead to a reinstatement or recurrence of warranty claims. Warranty claims permanently expire after the period comes to an end the first time.
6.12.Claims for damages become time-barred at the latest at the end of one year after knowledge of the damage and of the injuring party.
6.13.Claims based on the Product Liability Act remain unaffected by the above provisions. - Software adaptations by the Customer
7.1. The Customer is not permitted to adapt the software. Decompiling and disassembling the software are not permitted either.
7.2. Adaptation leads to immediate loss of warranty or to loss of damage claims on the part of the Customer (see Item 6.3.) and may result in liability on the part of the Customer (claims for damages or enrichment, etc.).
7.3. If it is necessary to create compatibility between the software that is the subject of the Contract and other programs or software (interoperability), Selmo shall provide the Customer with the required information. Section 40e Austrian Act on Copyright (UrhG) applies additionally to this item. - Nondisclosure and data protection
8.1. The Contractual Partners shall treat with strict confidentially the records, data, and documents of any kind whatsoever, as well as all issued information and any business and trade secrets made known of the other contracting party sent and created in connection with this Agreement, shall not use them or share them with third parties, and shall not disclose them or make them accessible in some other way with the exception of consultants (attorneys, tax advisors, etc.) who are subject to professional secrecy. This duty of nondisclosure shall also continue to apply after the contractual relationship has been ended.
8.2. Moreover, the Customer agrees that its employees shall comply with the provisions of Section 6 of the Austrian Data Protection Act. - Duration of the Contract for long-term commitments
9.1. Unless otherwise stipulated by a separate agreement, long-term commitments between the contracting parties shall be entered into for an indefinite period. However, they may be properly dissolved on a quarterly basis as of 03/31, 06/30, 09/30, or 12/31 in compliance with a three-month termination period.
9.2. However, both contracting parties are entitled to the right to terminate the Contract for good cause with immediate effect without complying with a termination period, especially if
• one of the Contractual Partners violates provisions of this Contract persistently and in spite of a written request to cease the conduct contrary to the Contract with setting of a grace period of 10 (ten) days and/or a request to restore a situation consistent with the Contract;
• the cooperation would cause reputational damage to the other party because of the conduct of the contracting party or its public reputation;
• there is disloyal conduct that makes further collaboration between the contracting parties unreasonable;
• there is a loss of the legal or actual requirements for meeting the conditions of the Contract (e.g. not merely temporary suspensions of business operations or closure of operations, loss of business license);
• rights from this Contract are transferred by the Contractual Partner to third parties without the previous written consent of Selmo. - Setoffs
10.1. The Customer may only setoff claims against Selmo with its own claims if Selmo has explicitly recognized the Customer’s claims in writing or the existence of these claims has been established in a final and conclusive judgment by a court of law. - Assignment of claims
11.1. The Customer can only assign claims from the contractual relationship to third parties after advance written consent from Selmo. - Place of performance
12.1. Selmo’s headquarters are the place of performance. - Oral ancillary agreements
13.1. Absolutely no oral ancillary agreements exist, and the Contractual Partners promise each other that for the purpose of preserving evidence they will draw up written documents for contractual supplements, amendments, or dissolutions. - Choice of law and jurisdiction
14.1. For Contracts to which these GTC are applicable, Austrian law applies to the exclusion of all conflict of laws rules (Austrian Private International Law Act and Rome I regulation) and to the exclusion of the Convention of Contracts for the International Sale of Goods (CISG) dated 04/11/1980 – as last amended, UN sales law, etc. Selmo’s headquarters is agreed upon as the sole place of jurisdiction. - Severability clause
15.1. Should a provision of these GTC be or become invalid and/or incomplete, a legally valid provision that comes as close as possible to the economic effects of the invalid or incomplete provision shall take the place of the provision that has become invalid. The invalidity or incompleteness of a provision shall not affect the validity of the other provisions.