Hospitality Services GmbH
1. General Terms and Conditions
These General Terms and Conditions for the sale of goods shall apply for all deliveries by Deuromedia to Contracting Party. Deviating Terms and Conditions of the Contracting Party shall apply only if acknowledged by a duly authorised officer of DEUROMEDIA in writing.
2. Offer and Conclusion of Contract
All estimates, price information or proposals given by DEUROMEDIA shall be subject to change and non binding. A binding agreement shall be concluded only after a purchase order of Contractual Party is accepted by DEUROMEDIA issuing an order confirmation.
3. Delivery and Transfer of risk
DEUROMEDIA will provide reasonable effort to comply with delivery times stipulated in contract. Nevertheless delay may occur (Delays in supplier chain, Force Majeure a.s.o). All delivery data are unbinding and subject to possible changes and DEUROMEDIA shall not be liable for any damages incurred due to delayed deliveries. Partial shipments are always allowed.
If the delivery by DEUROMEDIA depends on a third party supplier DEUROMEDIA reserves the right, to resign from or to terminate the contract, without any liability to the Contractual Party, if the third party supplier is unable to deliver within a period of more than one month.
Unless otherwise agreed DEUROMEDIAs deliveries are "ex Works" in accordance with the INCOTERMS 2000 which means DEUROMEDIA's registered place of business or production as specified by DEUROMEDIA. Software and Content will be delivered ex works on a storage medium or will be made available for download. Deuromedia shall not be responsible for any legal consequences or costs deriving from the import of Software Licenses.
The Contractual Party is obliged to accept goods and services delivered by Deuromedia. Software and Content will be delivered ex works on a storage medium or will be made available for download and shall be deemed accepted , if the acceptance is confirmed by Contractual Party or end-user customer, or if the Software is installed at the end-user customer’s premises and operational, or four weeks after installation, whatever is earlier.
Services rendered shall be deemed accepted upon provision.
In case the Contractual Party detects substantial defects after acceptance the Contractual Party may claim warranty pursuant to the Warranty Section below. In Case of partial deliveries partial acceptance shall be permitted.
5.Reservation of title
Software and Content licenses are granted subject to full payment of license fees.
The Contractual Party is reliable for the safe and adequate storage of Software and Content delivered and shall at its own expense
conclude adequate insurance against theft, fire, water or other possible damages, in accordance with this type of business. The
Contractual Party herewith transfers title to insurance benefits to DEUROMEDIA.
DEUROMEDIA may at any time and without previous notice terminate the usage of Software and Content delivered or withhold scheduled deliveries in case circumstances occur which make it unacceptable for DEUROMEDIA to remain bound to an agreement or order accepted by Deuromedia or in case the Contractual Party is in delay with its consideration or the Contractual Party‘s consideration might be endangered due to the Contractual Party financial status. Therefore the Contractual Party entitles DEUROMEDIA, its employees, factors, and assignees safe and unlimited physical or remote access to the Contractual Party and/or end-user customer’s premises during normal working hours.
Prices are based on accrued costs at the date of offer preparation by Deuromedia and are quoted "ex works", in EURO. Prices do not include costs for shipment, handling and taxes. Withholding taxes and VAT, if any, are to be borne by the Contractual Party.
Deuromedia and the Contractual Party explicitly agree stable value of Prices for Services and Licences. Stable value of Prices for Services and Licences will be based on the monthly published Consumer Price Index (Verbraucherpreisindex) (VPI 2010=100) published by the Austrian Central Bureau of Statistics (Österreichisches Statistisches Zentralamt) or a superceding index.
The Contract Price for Services and Licences will be based on the index figure published for the month of the effective date (effective date shall mean date of Contract Conclusion). Variations within 6 months from effective date shall remain undiscounted. Thereafter on the 1 day of the seventh month following the effective date as well as on every 1st day of January and 1st day of July the Prices for Services and Licences shall be recalculated and adapted in accordance with the variations.
Software and Services: A down payment of 50% of the total price shall fall due upon order confirmation by DEUROMEDIA. 40%shall fall due prior of ex-works delivery, the remaining amount upon Acceptance.
Content:All initial fees shall be due 100% immediately upon order confirmation, recurrent fees or monthly fees are due at the beginning of the respective period or of the respective month in advance. All fees depending on turnover are due 100% upon end of the respective turnover period.
Support Services: All initial fees shall be due 100% immediately upon order confirmation, recurrent fees or monthly fees shall be due at the beginning of the period or of the respective month in advance.
Notwithstanding any other allocation declared by the Contracting Party, incoming payments shall first be set off against (court or out-ofcourt) recovery costs, then against interest on arrears and only then against any other amounts receivable. In case several amounts receivable exist, incoming payments shall first be set off against the oldest amount receivable including incidental costs in the order described above. Any banking or bank transmission costs shall be borne by Contractual Party.
Contracting Party may set off claims of DEUROMEDIA only by counter-claims declared by court or expressly acknowledged by DEUROMEDIA.
In case of delayed payment the Contractual Party shall owe interest on arrears as required by law, but at least interest on arrears of 18% per year, equivalent to 1,5 % per month, or 0,05% per day. DEUROMEDIA reserves the right in case of delayed payments to retain deliveries or services.
9.Intellectual Property Rights
All intellectual property rights on programs, software, documentation, Content, design, trademarks etc. shall remain with DEUROMEDIA or its Licensors. Provided that the Contractual Party has paid all amounts due Deuromedia grants to the Contractual Party a non exclusive, non transferable Licence to use Software or Content in the location referred to in the relevant agreement, for the purpose and within the limits, for which it is designed and in accordance with instructions given by Deuromedia.
Without limiting the above provisions:
It is agreed and understood, that even with best available technology it is not possible to design and manufacture Software that is in all applications entirely free of any error. Deuromedia confirms that the deployment of the Software has been exercised with care and diligence. Deuromedia will continue to make any necessary effort eliminate errors or bugs.
DEUROMEDIA’s warranty for Software is limited to a period of 6 (six) months and for Updates (Update of existing Deuromedia Software
or parts of it) or Upgrades (Delivery of a new Version of the Deuromedia Infotainment Platform Software) to a period of 3 (three) months
from acceptance according to §4 of the present “General Terms and Conditions”. Any defect has to be proved by the Contractual Party.
The foregoing warranty obligations are conditional upon the Contractual Party giving immediate notice in writing of any defects that have
occurred. DEUROMEDIA shall, in the case of a defect covered by the warranty, have the option to decide the kind of remedy at its sole
If DEUROMEDIA repairs defects after the warranty period has expired or delivers other services or labour works charges will be set according to costs and DEUROMEDIA current pricelist.
For Updates and Upgrades the warranty applies exclusively for the performed Update as accomplished. The warranty for the initial delivery of the Deuromedia Software remains unaffected.
DEUROMEDIA shall be liable for damage only when incurred with intent and crass gross negligence In cases of slight negligence DEUROMEDIA shall assume liability only for personal injuries.
DEUROMEDIA shall not assume liability for mere property damage, indirect damage, loss of profit, savings that have not materialized, and consequential damage, damage from claims of third parties and for loss of data and programmes and their restoration. Claims for damages against DEUROMEDIA shall become time-barred within 6 months from the time when the Contractual Party or the end-user customer, whoever earlier, has become aware of the damage.
Each Party shall keep secret “Confidential Information” and will take any and all precautions to prevent the unauthorised disclosure of the Confidential Information and to exclude unauthorised third party from accessing the Confidential Information. Neither Party shall disclose the Confidential Information to third parties without the prior written consent of the other Party. Each Party shall disclose the Confidential Information solely on a strict “need to know”-basis and only to those of its employees who for the performance of the Agreement have a need to know the Confidential Information. Confidential Information shall not be used except for the purpose of the Agreement.
“Confidential Information” means alls business and trade secrets, including but not limited to technical data, customer data, purchasing terms and contracts, data about employees, suppliers and distribution partners, know-how, product ideas, data concerning research, development, production, technology, finances, cost structures, marketing activities and, if applicable, data subject to communication confidentiality. Confidential Information refers to any and all information which one party to the agreement communicates to the other party in whichever way (in writing, orally or in the form of plans, documentations etc.).
The obligations of confidentiality, non-disclosure and non-use shall not apply to information:
The end-user customer agrees or the Contractual Party ensures that the end-user customer entitles DEUROMEDIA, to reference the end-user customer for the purpose of PR/promotion as DEUROMEDIA’s end-user customer and to publish the type of delivered products.
DEUROMEDIA shall be entitled to store, process and pass on personal data by observing the pertinent data protection regulations within the framework of rendering services and for the contractually agreed purposes. The Contractual Party shall be responsible for obtaining, to the extent necessary, consent for storing, processing and passing on personal data also from end-user customers (= hotel operators) and consumers (= hotel guests).
To the extent that DEUROMEDIA is obligated by current legal provisions to pass on data, DEUROMEDIA shall comply with such obligation without the Contractual Party or end-user customers deriving legal consequences there from. Should the Contractual Party and/or end-user customers raise any claims against DEUROMEDIA in this context, the Contractual Party shall indemnify and hold DEUROMEDIA harmless.
Full or partial entry of a third party into the rights and duties of the Contracting Party shall be subject to the explicit written consent of DEUROMEDIA.
15. Applicable Law and Arbitration
All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these Rules. The number of arbitrators shall be three; the substantive law of Austria shall be applicable; application on the UN convention on contracts for the international sale of goods is renounced; the language to be used in the arbitral proceedings shall be German.
16. Other Provisions
Should any provision hereof be or become ineffective, the remaining parts of the Agreement shall not be affected, except if adherence to the agreement inflicts undue hardship on a party of the agreement. The ineffective provision shall be replaced by a substitute provision which comes closest to the intended purpose of the ineffective provision. The Contractual Party is not entitled to transfer claims based on this Contract. Declarations legally relevant for the agreement shall become effective only if made in writing or by e-mail.
© Hospitality Services GmbH, Barichgasse 40-42, A-1030 Wien, Austria; April 2013