This translation of Arivo's Terms and Conditions is provided for informational purposes only. Legal validity has only the original statement, which is available in german language.
General Terms and Conditions
§1 FIELD OF APPLICABILITY
- For all present and future business interactions between Arivo GmbH, Am Innovationspark 10, 8020 Graz (hereinafter referred as "Arivo"), as contractor/service provider on the one hand, and its principal/partners (hereinafter referred to as "Principal") on the other hand, the following General Terms and Conditions shall apply exclusively. Even if they are not expressly referred to, these Terms and Conditions shall apply.
- General terms and conditions of the principal shall only become part of the contract if confirmed in writing by Arivo. Contract fulfillment acts shall expressly not be considered as consent to contractual conditions deviating from these General Terms and Conditions. Arivo only concludes contracts with companies. Therefore, the Austrian consumer protection law (KSchG) is not applicable herein.
- Depending on the nature of the agreement, the contractual terms and conditions agreed separately between the contracting parties shall also apply, in particular the software and service conditions, value added reseller agreements, contract data processing, etc. In the event of any conflict between these General Terms and Conditions and such separately agreed terms and conditions, the latter shall take precedence in each case.
§ 2 OFFER AND CONCLUSION OF CONTRACT
- The scope of Arivo's delivery and/or service is defined in Arivo's written offer.
- Unless the binding nature of an offer has been expressly confirmed, all offers made by Arivo are subject to change without notice and an order shall be valid as confirmed only upon dispatch of a written confirmation of order by Arivo.
- Price quotations as well as cost estimates of Arivo are generally non-binding, unless their binding nature has been expressly confirmed in writing.
- All prices are exclusive of the applicable value added tax.
- The delivery of the service is EXW Graz (Incoterms 2010) at the expense and risk of the principal. With the handover to the carrier, the risk is transferred to the principal. Costs for special packaging will be charged to the principal. If agreed separately, Arivo will insure the delivery at the expense of the principal against damage in transit and loss of the goods.
- In the event of default in acceptance, the principal shall pay compensation at a flat rate of 5% of the purchase price as a contribution to processing costs. Arivo reserves the right to claim further damages.
- Any exceeding of the binding cost quotation due to changes in the quotation by the principal shall be accepted by the principal even without notification by Arivo. The principal waives his right to withdraw from the contract in such cases.
§ 3 HARDWARE
- The principal can purchase hardware components of the system in addition to the software.
- The principal shall independently ensure that the installation and use of the hardware is possible and permissible and that the owner of the parking spaces agrees to the installation and use of the system.
- The delivered and installed goods remain our property until full payment of the purchase price and all associated costs and expenses.
- In case of even partial delayed payment, we are entitled to collect the goods in an appropriate manner even without the buyer's consent and at the buyer's expense. A resale is only permissible if we have been informed of this in advance and if we consent to the sale. In the event of our consent, the purchase price claim shall be assigned to us and we shall be entitled to notify the Buyer of this assignment at any time.
- Ownership shall remain with us even if the delivery has been firmly combined or mixed with the property of the principal. If parts or goods delivered by us have become a dependent part of the property of the principal as a result of being combined with the property of the principal, the principal shall be obliged, in the event that he does not pay his liabilities to us in due time, to tolerate the reassembly of all parts or goods at his risk and expense or otherwise to pay corresponding monetary compensation. The principal acknowledges our ownership of such re-installed items.
§ 4 RIGHTS AND OBLIGATIONS OF THE PRINCIPAL
- The principal acknowledges that a failure of the system is possible and will therefore ensure that entry and exit is possible even if the system is not working.
- The principal is obligated to use the current version of the software by Arivo at any given time and shall immediately report any software errors to Arivo in writing in order to enable Arivo to correct the error as quickly as possible.
- The principal is obligated to attach a clearly visible sign for the identification of the license plate.
- The principal is prohibited from using Arivo's system in an abusive manner or in violation of the contract. The principal warrants that he will not use any equipment, software or other data in a manner that could lead to changes in the system and/or affect the availability of the system.
§ 5 RIGHTS AND DUTIES OF ARIVO
- Arivo has the right to include the principal including the company name as well as a possible logo and photos of the facility in a partner or reference list as well as to publically announce the business relationship with Arivo and to advertise thereby.
- Arivo is entitled to collect anonymous data about the user behavior and to process them for its own business purposes. In doing so, Arivo shall comply with the applicable data protection regulations.
§ 6 INVOICING, DELAY IN PAYMENT AND VALUE PROTECTION
- Invoices are sent exclusively electronically. A corresponding e-mail address must be provided by the client. If the invoices are sent to the last e-mail address provided by the Customer, they shall be treated as delivered upon dispatch. The costs for sending an invoice in paper form will be EUR 5.00 per invoice.
- The invoices are due for payment within 14 days of the invoice date. In the event of any delay in payment, the Contractor reserves the right to charge 8% interest on the overdue amount per annum.
- From a delay of payment of 14 days Arivo is also entitled to stop all services. For the duration of the delay, Arivo shall furthermore be released from all other contractual obligations, in particular from the warranty obligation.
- A payment is considered to be done when Arivo can dispose of the amount without any restrictions.
- Arivo reserves the right to adjust the prices unilaterally. The basis for the price adjustment is in each case the Austrian Consumer Price Index 2020 (CPI 2020) published by the Federal Institute "Statistik Austria" or the index replacing it. The basis of calculation is the index number last published in the month of the conclusion of the contract. Accordingly, both downward and upward price adjustments are possible. Index fluctuations up to and including +/- 3% shall not be taken into account. The index value calculated thus shall then form the basis for further indexation. In the event that the applicable index is no longer published, the index that is published instead of this index shall be used as the basis for the indexation; in the absence of such an index, the index that most closely corresponds to the consumer price index from an economic point of view shall be used. If it is no longer possible to use an index calculation, the value-secured charges shall be calculated on the basis of principles analogous to those last used for the index calculation.
- The principal shall not be entitled to set off any claim he may have against Arivo, unless the principal's claim has been finally adjudicated by a court of law.
- If the financial situation of the principal demonstrably declines, if insolvency proceedings are instituted against the assets of the principal, if such proceedings are threatened, if insolvency proceedings are not instituted due to lack of assets to cover costs, or if we receive information that gives rise to justified doubts about the solvency or willingness to pay of the principal, Arivo shall be entitled at any time to declare all claims against the principal immediately due and payable. If a method of payment other than cash has been agreed upon, Arivo shall further be entitled to demand cash payment.
- Delay in payment of any kind as well as the opening of insolvency proceedings or the non-opening of insolvency proceedings due to lack of assets shall result in the loss of all discounts and reductions granted to the principal.
- The principal accepts the following terms of payment: 25% down payment, 75% upon installation.
§ 7 WARRANTY
- Arivo warrants that the system will perform as warranted in the specifications.
- A warranty period of 12 months from the date of transfer is agreed for the service included in the quotation. The transfer is considered to take place as soon as all hardware components are installed locally and ready for use by Arivo, regardless of whether the contractor is already using the system and all on-site services (e.g. functioning Internet) have been fulfilled.
- Any warranty is void for damages caused by improper handling, incorrect operation, missing or delayed maintenance or other external influences (e.g. vandalism) without our fault.
- Arivo shall provide warranty within a reasonable period of time at its own choice by improving or replacing the defective service or by reducing the price or terminating the contract. Upon Arivo's request, the customer is obliged to send the defective goods to Arivo at his own expense. Replaced parts shall become the property of Arivo.
- For corrections made by the principal himself of by third parties, Arivo is only responsible if Arivo has given its explicit written consent in advance.
- No warranty shall be given for individual program adaptations or reprogramming according to the principal's specifications.
- The principal shall bear the full burden of proof for all claim requirements, in particular for the defect itself, its existence at the time of handover, the time of discovery of this defect and the timely submission of the notice of defect. Any legal presumption to the burden of Arivo, in particular that defects occurring in the first six months after handover were already present at the time of handover, shall be excluded.
§ 8 LIABILITY
- Arivo shall only be liable to the principal - with the exception of any personal injury - in the event of gross negligence or wilful misconduct, whereby claims for damages, except in the case of personal injury, shall be limited to the amount of the offer (but not more than € 100,000). This applies in particular to any resulting damages, such as loss of profit due to production downtime, loss of production, loss of sales.
- Arivo shall not be liable for damages caused by acts of third parties, force majors (e.g. fire and water damage, direct or indirect lightning strike, etc.) or improper actions by the principal or his employees.
- Arivo shall not be liable for the content, correctness or completeness of the data transmitted by the principal or entered into the system.
- Arivo shall not be liable for the fact that the provided system meets all requirements of the principal and achieves the desired economic success or yield for the principal.
- Arivo is not liable for damages resulting from the fact that the principal
- does not comply with legal regulations or official requirements;
- violates intellectual property rights of third parties;
- does not comply with Arivo's instructions regarding installation, commissioning or use of the service;
- does not carry out data backups properly and regularly;
- or third parties make repairs, modifications or repairs or other changes (including damages) to the system or hardware without written consent of Arivo;
- uses equipment that does not function properly from a technical point of view (such as networks, supply lines, cabling);
- does not carry out necessary maintenance work in due time;
- Arivo is furthermore not liable for damages caused by defects or damages of third party components, internet malfunctions, software viruses or other external influences on the system or hardware.
- The reversal of the burden of proof according to § 1298 ABGB (Austrian Civil Code) - except for personal injury - is expressly excluded.
- All claims for compensation shall expire at the latest 6 months after the Principal has become aware of the damage and the damaging party.
- In those cases where coverage is provided by our business liability insurance, any liability to pay compensation shall be limited to the available coverage amount of our business liability insurance. The above mentioned limitations of liability remain unaffected by this.
- Barriers and rolling gates can be activated by the scope of services. The principal shall ensure that the users of the system are made aware of the dangers and that the barrier or roller shutter is only activated if the user is satisfied that there is no danger to himself or to third parties. Arivo shall not be liable for any damages resulting from the use of the system by end users of the principal. The principal shall fully indemnify and hold Arivo harmless in this regard. The principal is obligated to protect the software against attacks and to take security measures.
- According to the standard DIN EN 12453 the barrier must be equipped with a non-contact protection device for presence detection in order to reduce the probability of a contact with a person. The system is operated exclusively at the risk of the operator. The commissioning of the system is carried out under exclusion of any warranty claims, as well as recourse claims with regard to damages arising from the non-compliance with the above mentioned standard.
§ 9 PENALTIES, DELAY
- The principal may, to the exclusion of further claims, demand compensation for delay in delivery in the amount of 0.5% for each full week of delay, but not more than a total of 5% of the order amount of the delayed delivery, in the event of a delay in delivery for which Arivo is grossly negligent or intentionally at fault.
- The delivery date will be fixed after order confirmation and final technical clarification in the kickoff meeting with the principal.
- In order to meet the agreed deadlines, the principal must carry out the planned project steps on schedule. The on-site services according to the offer must be provided on time and active cooperation of the principal in the implementation of the project is assumed. All agreed partial payments shall be settled by the principal in full and in due time.
- If the failure to meet the delivery deadline is due to mobilization, war, riot, strike, lockout or the occurrence of unforeseeable obstacles, force majeure or the disruption of networks (including the Internet), the deadline shall be extended accordingly. It is irrelevant whether these circumstances occur at Arivo itself or at a supplier or subcontractor of Arivo.
§ 10 SET-OFF, ASSIGNMENT OF CLAIMS AND RIGHTS AND OBLIGATIONS
- The principal shall not be entitled to
- to set off his counterclaims of any kind against claims of Arivo; this shall not affect the principal's right to set off his legally established claims against claims of Arivo.
- to withhold payments to secure his own claims.
- The transfer of rights and obligations arising from a contract, in particular the assignment of claims, is only permissible with a separate agreement or with Arivo's consent.
- Arivo shall be entitled
- to set off its counterclaims of any kind against the claims of the principal;
- withhold performance until all due claims arising from the contract and from all other legal transactions between Arivo and the customer have been settled.
- to withhold performance until the customer has taken the actions necessary to fulfill the contract.
- in case of default of payment by the principal, to call due all claims arising from this contract and from all other legal transactions between Arivo and the customer, setting a reasonable extension of time.
- to assign claims and rights arising from the contractual relationship in whole or in part to third parties.
- to transfer the contract in whole or in part to third parties.
§ 11 FINAL CLAUSE
- Disputes arising out of and in connection with contracts concluded with Arivo shall be governed exclusively by Austrian law, excluding the conflict of laws rules. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
- For all disputes arising from and in connection with the contracts concluded with Arivo, the court having jurisdiction is Graz, Austria.
- Unless otherwise agreed, the place of performance for delivery and payment shall be the registered office of Arivo.
- Amendments or additions to contracts concluded with Arivo must be made in writing.
- Should any provision of these terms and conditions be or become invalid, unenforceable and/or void, this shall not result in the invalidity, unenforceability and/or voidness of the entire terms and conditions. In such a case, the parties undertake to replace the void, unenforceable and/or invalid provisions with a provision that comes as close as possible to the economic purpose of the void, unenforceable and/or invalid provision.
- Arivo reserves the right to change these terms and conditions at any time. The customer shall be informed in writing of any changes to the terms and conditions. If the customer does not object to the amended terms and conditions within 14 days after receipt of the notification, the amended terms and conditions shall be treated as accepted.