General Terms and Conditions

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General Terms and Conditions 2017-01-23T13:09:43+00:00

General Terms and Conditions

General Terms and Conditions of Sale for Entrepreneurs – ICSL

 

The English translation of these General Terms and Conditions has only been provided for convenience purposes. In case of differences the German version prevails.

 

1. Preamble

ICSL Consulting for Information-Technology and Telecommunications GmbH (hereinafter referred to as “ICSL”) is an internationally active company that offers solutions for protection and secure transfer of information as well as for protection of identities. Among others ICSL for example offers highly secure and authority-compliant voice-, data encryption- and communication-systems, highly secure security-token as well as their integration, solutions for stabilization and ensuring the communication of mobile devices, solutions for data security in companies, jamming solutions for authorities, services against eavesdropping; analysis, consulting and trainings complete the business segment communication and data security.

ICSL has its own development department for crypto-, security- and communication solutions and is also responsible for distribution, training, maintenance and support for different producers of high-tech security-products.

Historically, a meanwhile decoupled sector of ICSL is the development, the establishment as well as the re-organization of companies in the fields of ITC with new innovative solutions. The outcome of this work of the last years is a reseller network in the field of ITC spanning 28 countries that offers new technology partners the possibility of a quick market test and solution roll-outs as well as an IT-department that develops productivity tools and tools for simplified company administration and sales as well as complete web portals.

The public part of the Product/Services Catalogue can be seen on the homepage of ICSL in the relevant version.

 

2. Scope of Validity

2.1 These General Terms and Conditions of Sale shall apply to all contracts between customers and ICSL for the supply of goods and services as well to all rights and duties that result from the contracts, except that these General Terms and Conditions are overruled by special regulations of a supplier – especially regarding scope of services, warranty, liability, service and support.

2.2 Conflicting or deviating conditions of the customer shall only apply, if ICSL complies expressly and in writing. It shall be expressly stated that these General Terms and Conditions of Sale shall also keep their exclusive validity even in the case that ICSL carries out deliveries or services to the customer without reservation although being aware of the fact that the conditions of the customer conflict with or deviate from these General Terms and Conditions of Sale.

2.3 These General Terms and Conditions of Sale shall only apply to legal acts between entrepreneurs and ICSL. An entrepreneur in terms of these General Terms and Conditions of Sale is a person that carries on a business company. A business company is every continuous organization based on autonomous economic activity, not necessarily profitmaking. This definition of an entrepreneur is in accordance to § 1 UGB (Austrian Commercial Code). According to § 1 KSchG (Consumer Protection Act) corporate bodies under public law are always entrepreneurs.

2.4 These General Terms and Conditions of Sale shall also apply for future contracts between the parties, even with no further reference.

 

3. Offer and Conclusion of the Contract

3.1 Offers of ICSL are non-binding towards the customer, with the exception that a following contract is concluded.

3.2 A contract relation comes about, if ICSL issues an order confirmation in writing after receiving an order or charge of the customer and/or if the customer fulfills the conditions mentioned in the offer (advance or initial payment, security deposit, verification of creditworthiness). ICSL is only obliged to delivery after the customer fulfilled these or further conditions that were agreed in written form between the parties (e.g. customs declarations, export licenses etc.). (But ICSL shall be at liberty to deliver nevertheless according to its own discretion or agreement with the customer.)

3.3 Contracts for the performance of a continuing obligation (rental of products, maintenance contracts etc.) begin with receipt of a “ready for service” (RFS) announcement to the customer (variations depending on products are possible respectively can be individually agreed with the customer).

3.4 Only the written offer and at the most the written order confirmation as well as associated written agreements between the parties are relevant for content and scope of the order. Specifications in prospects, catalogues and other marketing or sales material are only binding for ICSL, if the order confirmation expressly refers to it. ICSL does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit and written confirmation.

3.5 Modifications and amendments to the contract shall only apply, if ICSL gives its explicit written consent. In case that these changes or circumstances that were not predictable to ICSL at the time of the conclusion of the contract cause additional costs, ICSL is entitled to charge these costs to the customer ´s account.

3.6 In case that the subject of the contract is the delivery of software, the delivery includes the software program and a description of the program that runs on the agreed equipment, which will be either delivered on a data carrier or can be downloaded online on the homepage of ICSL. ICSL respectively – in case of delivery of software developed by third persons – the owner of the software completely reserves the program and documentation rights, except the case that something else was agreed expressly in written form between the parties.

 

4. Implementation of the Contract

4.1 The customer is obliged to inform ICSL about his data and other information that are relevant for the implementation of the contract and to provide ICSL the information at his account and to obtain possibly required approval of third persons. In case of changes during the implementation of the contract, the customer is obliged to inform ICSL without delay. ICSL is not obliged to verify the data, information or other activities provided by the customer and therefore ICSL is not liable for damages caused by incorrect or incomplete information from the customer.

4.2 As far as nothing contrary was agreed between the parties, any notice from the customer to ICSL shall be sent in electronic written form; any notice respectively reminders from ICSL to the customer shall be sent to the e-mail address notified by the customer.

4.3 The customer is obliged to inform ICSL in written form with no delay about changes of his name or e-mail address as long as the contractual legal act is not completely fulfilled. In case of no notification of change, documents are considered as being received by the customer, when they were sent to the recent address of the customer. If the customer does not wish any electronic correspondence, he is obliged to inform ICSL expressly in written form, to announce his delivery address to ICSL as well as to bear any arising expenses. Changing requests regarding invoices cannot delay their payment date.

4.4 If, after conclusion of the contract, ICSL recognizes that the customer’s ability to meet the payments may be imperiled, ICSL shall be entitled to exercise its rights in accordance with §1052/2 ABGB (Austrian Civil Code); that means ICSL reserves the right to claim assurance from the customer. In this case ICSL shall be entitled to declare due all receivables arising from the customer’s account that are not yet due.

4.5 The use or acquisition of particular (software) products may require a network connection; regarding any end-devices (PC, Smartphone etc.) that are necessary but not included in the scope of services as well as regarding the exact technical requirements please see the Products/Services Catalogue on the homepage of ICSL. Network connection and end device shall be provided by the customer. ICSL is not liable for disruptions caused by third persons or in case that third persons will not provide a necessary network service in some regions or reject particular customers from necessary network services or disable existing networks.

4.6 ICSL provides its services under a Fair-Use-Policy. The Fair-Use-Policy makes sure that the available transmission capacity is distributed fairly to all users.

 

5. Payment

5.1 All prices are in accordance to the pricelists of ICSL in the latest version. As far as nothing contrary was agreed, the prices are considered as net-prices in Euro ex works (according the Incoterms 2010) respectively ex stock from ICSL without package and loading. Charges relating to the delivery shall be borne by the customer. If the customer wishes a delivery with notification or transport insurance, these costs are charged at the customer´s account.

5.2 The compliance with the agreed prices implies that the positions on which the contract was based remain constant and can be provided without obstructions (except the case that ICSL is responsible for these obstructions). Subsequent unpredictable extensions or modifications that lead to additional expenses shall be borne by the customer. If levies, delivery costs or other external costs that are included in the agreed price change later than six (6) weeks after conclusion of the contract, ICSL is entitled to a price modification in respective amount.

5.3 The customer is obliged to advance or initial payment in the amount of one third of the agreed price, unless contrary was arranged in written form between the parties. ICSL is only obliged to delivery if the advance or initial payment arrive in due time.

5.4 Fees that result from service agreements (contract about the rental of products, maintenance contracts, software license agreements etc.) shall be always paid for one year in advance.

5.5 Agreed prices – that means the advance or initial payment as well as the remaining invoiced amount, rental fees, software and/or maintenance fees etc. – shall be transferred to the account of ICSL within 14 days after receipt of the invoice (respectively the order confirmation); the payment transaction costs shall be borne by the customer.

5.6 A possibly arranged cash discount always refers to the net invoice value and requires the complete settlement of every obligation of the customer towards ICSL that is due at the date of the allowance of the cash discount. Unless nothing contrary was arranged, cash discount periods begin from date of invoice.

5.7 In case of default – even in case of default through no fault of the customer – the customer is obliged to bear the expenses of reminding and collection as well as any other costs that are necessary for an adequate litigation, as far as they are in reasonable relation to the asserted claim. Especially in case of hiring a debt collecting agency, the customer is obliged to bear these costs, as far as they do not exceed the maximum rate of the remuneration of debt collecting agencies according to the regulation of the BMWA (Federal Ministry of Economics and Labor). Beyond that, any further harm, especially the harm in terms of higher interest on possible credit accounts of ICSL caused by non-payment shall be indemnified by the customer apart from fault. Furthermore, ICSL is entitled to charge interest for default in the amount of 12% p.a. (from the gross amount) from due date (see also 6.6).

5.8 In case that the customer has concluded a service agreement with ICSL and fails to meet his payment obligations (default of payment) ICSL shall be entitled to exclude the customer from the agreed services after sending a reminder and giving a period of grace of 2 weeks stating the possibility of an exclusion. Nevertheless, the customer shall be obliged to pay the fees for the agreed services until regular termination of the service agreement.

5.9 ICSL reserves the right to inform the credit reference agency (Kreditschutzverband von 1870) in case of default of payment – after previous reminder of the customer. Therefore, name, date of birth and address of the customer as well as the outstanding value will be transferred to the commercial credit department of the credit reference agency (Kreditschutzverband von 1870).

5.10 The customer shall submit objections against invoiced claims within 30 days from invoice date, otherwise the invoiced claims are considered to be accepted by the customer.

5.11 The customer is not entitled to set-off with outstanding debts against ICSL.

5.12 The customer has no right of retention and no right to reduce payments because of asserted claims against ICSL.

5.13 The customer has no defense of insecurity and no defense of lack of performance of the contract according §1052 ABGB (Austrian Civil Code).

 

6. Delivery, Distribution, Passing of Risk

6.1 Delivery dates that have not expressly been agreed as binding shall not be deemed to be binding.

Delivery periods that ICSL stated as being binding are only deemed to begin when all technical and other relevant questions have been resolved and possibly agreed conditions (e.g. export licenses, customs declarations) or other obligations (e.g. to cooperate) have been met by the customer (c.f. 4.1, 5.3), especially advance or initial payment.

6.2 In the event that delivery dates are non-binding, ICSL shall only be deemed to be in delay with its obligation to deliver after the customer sends a reminder indicating a reasonable period of grace, after this period has expired and further legal preconditions have been met.

6.3 Place of delivery of ICSL shall be the headquarters of ICSL. Place of fulfillment of the services that ICSL offers depends on the content of the respective contract; in case of doubt the headquarters of ICSL shall be relevant.

6.4 In case of ordering products, ICSL shall determine the route and means of transport as well as the forwarder and carrier, if nothing to the contrary was agreed upon. ICSL shall only provide insurance for goods in transit or additional packaging, protection and/or transport equipment during the transport if specifically instructed to do so by the customer and if the costs are borne by the same.

6.5 In the case of force majeure, the contractual obligations of both parties shall be suspended. Instances of force majeure shall also include internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of ICSL, acts of government and other circumstances for which neither of the parties is answerable.

6.6 Goods that are reported as ready for delivery shall be taken into customer´s charge immediately. If the customer falls behind with taking in charge of the goods or if he refuses to accept the delivery, the customer shall be bound to pay indemnity to ICSL. ICSL reserves the right to insist on the acceptance of the delivery as well as to claim an appropriate indemnification for the additional expenses (transport-, handling-, storage costs, etc.). (Further consequences of default c.f. 5.6)

6.7 The risk of accidental loss of the goods shall be passed to the customer when the goods are handed over to the carrier respectively with the beginning of the storage.

6.8 In case that delivery is delayed on demand of the customer, because of force majeure or if the customer falls behind with taking in charge of the goods, the risk of accidental loss is passed to the customer for the period of delay starting with the date of readiness of delivery.

6.9 The customer shall receive delivered goods, even in case that they have possible deficiencies. Partial delivery shall be tolerable.

 

7. Reservation of Title

7.1 All delivered goods shall retain in the ownership of ICSL until complete payment of the purchasing price and all associated charges and expenses, as far as nothing to the contrary was expressly agreed upon between the parties in written form.

7.2 The customer is obliged to make any legal dispositions to protect the property of ICSL this means that especially resale, pledging, security transfer or other disposal, transformation or converting of the goods shall be prohibited (In this case the following regulations 7.3-7.8 shall not apply).

7.3 Only in case of individual agreement between the parties and after signing a Reseller Agreement or any other sales or distribution agreement provided by ICSL, the customer shall be entitled to resell the reserved goods in accordance with the regulations of the Reseller Agreement or the sales or distribution agreement as well as the regulations 7.4ff of these General Terms and Conditions of Sale.

7.4 If the customer should resale the reserved goods, any claims on the purchasing price including any security deposits against the purchaser are deemed to be assigned to ICSL.

7.5 On demand of ICSL, the customer is obliged to inform his purchaser immediately about the assignment to ICSL and to hand over any documents that are necessary for the collection of the receivables.

7.6 The customer is entitled to collect receivables from the sale. This collection authorization expires in case of withdrawal from ICSL, but at the latest in case of delayed payment or in case of petition in insolvency or bankruptcy respectively rejection of a respective petition due to lack of funds. ICSL will only exercise its right of withdrawal, if, after conclusion of the contract, ICSL recognizes that the customer’s ability to meet the payments resulting from this or other contracts with ICSL may be imperiled.

7.7 In case that the customer is in (partial) delay with one or more payments, stops his payment or an institution of insolvency or bankruptcy proceedings against the assets of the customer is petitioned respectively the application is rejected due to lack of funds, the customer is not allowed to dispose of the goods anymore.

7.8 In this event, ICSL shall be entitled to withdraw from the contract as well as from the Reseller Agreement respectively the sales or distribution agreement without setting a period of grace. ICSL shall also be entitled to ask for returning of the reserved goods or to withdraw the authorization of the collection of the receivables from the sale, even without withdrawal from the contract.

 

8. Intellectual Property Rights

8.1 Existing, to the respective contractual performance introduced or in the course of contractual performance developed know-how, ideas, inventions and patents remain exclusive intellectual property of ICSL.

8.2 Content and concept of the offer of ICSL remain intellectual property of ICSL; any rights of use are entitled solely to ICSL. In case that a contract with ICSL does not come about, the customer is obliged to return any documents and elaborations about the project. The customer shall neither – even if a contract comes about – duplicate nor gain access to the offer and possible other documents about the project without explicit written consent of ICSL to third persons. Vice versa ICSL will not pass the content and concept of the offer to third persons.

8.3 Any information, records, elaborations, and other documents in any form that were disclosed to the other contractual party, remain exclusive intellectual property of the disclosing party. They shall be treated as confidential by the receiving party, used exclusively during the period of contract and returned immediately on demand of the other party. The obligation to confidentiality ends five years after termination of the respective business relation (respectively complies with an individual or project-based Non-Disclosure Agreement). In case that the customer should – after prior written consent of ICSL – assign rights and duties from this contract to a third person, the customer is also obliged to transfer the required obligation to confidentiality to this third person.

8.4 If services from ICSL are based on descriptions, documents or plans from the customer or from third persons that are connected to the customer, the customer is obliged to take care for the granting of any copyrights necessary for their usage.

8.5 After fulfillment of his financial duties resulting from the contract, the customer obtains following rights of use for the duration of the contract:

a) A non-exclusive, non-transferable permission to use any for the contractual performance relevant ideas, know-how and inventions of ICSL, no matter if patented or not, for purposes agreed in the contract, not for other purposes;

b) the right to use the hardware and other solutions, information and documents of ICSL that are relevant for the contractual performance, at which the customer is obliged to keep any documents about the project that were provided by ICSL in confidence as well as

c) the non-exclusive, revocable, non-transferable, limited right to use any contractual software and updates, features, new technologies, documentations etc. that were created for the hardware defined in the respective contract with the customer according to type, amount and installation location. As “use” shall be especially deemed the installation and application of any contractual software by the customer. The customer is obliged to comply with the license terms for any software – irrespective if the software is from ICSL or from third persons offered by ICSL – and possible regulations for the use, and to omit any transfer or duplication of the software. The customer is obliged to indemnify and hold ICSL harmless in case of violation.

8.6 The customer has no permission to any other form of use, especially not to publish, transfer or make the use accessible to unauthorized third persons; the customer is not authorized to sub-licensing against payment or free of charge, except the case that nothing contrary was agreed individually in the contract or offer. Furthermore, the customer is not entitled to reconvert software components or parts of it (to decompile) or to use software components as sample in order to develop similar ones. The compliance with this regulation is an essential duty of the contract. In case of violation, the customer is obliged to pay a contractual penalty in the amount of the tenfold value of the order, irrespective of further claims from ICSL respectively – in case of delivery of software from third persons – from other licensors.

8.7 The customer is neither allowed to remove nor to adapt, change, modify or obliterate labels, trademarks, net brands etc. that are attached or appended to the delivered subjects of contract.

8.8 ICSL warrants that no circumstances – especially no intellectual property rights of third persons – are known to ICSL that may complicate or prohibit the development and production of the subjects of contract.

8.9 In case that a third person makes claims on the customer because of violation of intellectual property rights of third persons at usual application of the subject of contract, he shall inform ICSL immediately (within two working days) in written form. The customer shall detain from any statements, confessions or even solution proposals towards the claimant. ICSL will dispute the claim or modify the subject of contract accordingly. In case that the contractual use of the product might be prohibited in the course of a violation of existing intellectual property rights in perpetuity, ICSL will according to economic efficiency

–       modify the subject of contract in a way that there will be no violation of rights anymore;

–       purchase the necessary rights on the violated intellectual property rights for the customer.

–       In case that this is not possible with reasonable efforts, the customer is obliged to return the original and any copies of the subject of contract inclusive any transferred documents immediately on demand of ICSL.

Herewith any and all claims of the customer regarding the violation of intellectual property rights and copyrights shall be regulated terminally, excluding any further duty of ICSL.

8.10 Irrespective of the above mentioned regulation, ICSL assumes no liability for settlements or arrangements closed by the customer without prior written consent of ICSL as well as regarding trials that concern (also) other than the products sold and developed by ICSL.

8.11 In case of violation of intellectual property rights of third persons, the customer shall indemnify and hold ICSL harmless regarding:

–       subjects of the contract that were solely based on descriptions, plans or other specifications of the customer;

–       components, parts etc. that were provided to ICSL by the customer;

–       claims that result from installation, use, development or modification of the goods by the customer or a third person that was hired by the customer.

 

9. Warranty

9.1 ICSL warrants that the particular subject of the contract is in serviceable condition on delivery date and has the properties that were expressly stipulated in the contract respectively the properties that are usually expected. Specifications in prospects, catalogues and other marketing or sales material are only binding for ICSL, if the order confirmation expressly refers to it. ICSL does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit and written confirmation.

ICSL warrants the integrity (immutability), reproducibility and confidentiality of the available documents, as far as they are in the sphere of influence of ICSL.

9.2 The customer is obliged to carefully examine the goods immediately after delivery and to reprehend possible defects within 14 working days in detailed written form to ICSL. Hidden defects shall be reprehended immediately after discovering. In case of noncompliance with the duty to examine and reprehend the goods, the customer loses any claims of warranty, indemnification as well as his claims of avoidance of contract on account of a mistake.

9.3 In case of complaints, the customer has to give ICSL immediately the chance to probe the objected goods; on demand of ICSL, the objected goods or a pattern of it has to be placed at the disposal of ICSL on the account of ICSL. In case of unjustified complaints, ICSL reserves the right to charge the customer with the costs for freight, transport and expenses for inspection.

9.4 As far as ICSL is responsible for a defect, ICSL is obliged to correct the defect by either rectification or exchange according to ICSL´ discretion. Annulment of contract and reduction of price are possible only according to ICSL´ discretion. If, in the course of rectification of the defect, new pieces are installed that increase the common value of the goods, the customer is obliged to compensate the rise in value towards ICSL.

9.5 The warranty period shall be 12 month from delivery, unless nothing contrary was agreed in writing by the parties. The warranty period might vary depending on product.

9.6 The customer is obliged to prove that the defect already existed by the time of delivery – even within the first 6 month after delivery. The reversal of evidence according to §924/2 ABGB (Austrian Civil Code) shall be excluded.

9.7 Claims of warranty beyond the regulations mentioned above shall be excluded, especially claims of indemnifications for defects that did not arise on the subject of contract itself. This shall not apply in case that ICSL is compulsory liable in cases of purpose, gross negligence or lack of agreed properties. Claims and harms that are in no relation to the defectiveness of the goods themselves, but that are a consequence of this defectiveness, shall be excluded.

9.8 By all means, ICSL does not assume any warranty in cases of

–       defects, interruptions or damages that are not within the sphere of influence of ICSL

–       improper or inappropriate use or treatment

–       installation or operation by the customer or a third person

–       non-observance of the installation requirements and service conditions

–       naturally abrasion and overstraining

–       use of improper operation material and adaptation with products of other origin by the customer

–       violation of intellectual property rights of third persons that were caused by productions and deliveries of ICSL according to plans and requirements that were handed over to ICSL by the customer

–       modifications, additions or other changes of the program by the customer or third persons

–       contamination of the software with computer viruses at the customer´s infrastructure or interruption of the applicability of the programs caused by modifications within the system of the customer (e.g. faulty software of third persons that was not delivered to the customer by ICSL)

–       use with products and/or software from other origin

–       use of improper organization materials and data media

–       malfunction of the network connection

–       damages from transport etc.

Beyond that, ICSL does not warrant

–       that the delivered software is in accordance with the demands of the customer (except that these demands were expressly agreed in the contract)

–       that the programs run without breaks and defects

–       that the software is compatible with other programs of the customer or

–       that any software defects can be resolved.

9.9 The warranty shall be canceled immediately in case that the customer himself or a not expressly authorized third person modifies, repairs or adapts the subject of contract without prior written consent of ICSL. Invoices for this shall not be accepted.

9.10 ICSL reserves the right to limit the access to the offered services for the case that the safety of the mains operation, the maintenance of the general server operation as well as the net-integrity require such a limitation, especially to avoid severe breakdowns of the net, software or stored data.

9.11 The customer is aware of the essential features of the subject of the contract. He has informed himself about any important circumstances, possible risks in connection with computing in general and with this project in particular. In case of doubts or further questions, the customer contacted employees of ICSL or other experts in order to advise him before conclusion of a contract. Thus the customer bears the risk that the subject of contract complies with his demands and requirements, that the adequate system requirements are given and that the subject of contract is compatible with the infrastructure of the customer.

 

10. Liability

10.1 ICSL shall be only liable for damages of the delivered goods themselves and if purpose, gross negligence or culpable violation of essential contractual duties can be proven; ICSL shall not be liable for damages that are caused by slight negligence of ICSL. Other and exceeding claims of the customer, especially for lost profit, lost savings, consequential harm caused by a defect, financial loss, loss of interest and harms from claims of third persons – e.g. from the title of product liability – against ICSL are excluded in any case.

10.2 The compensation for damages is limited to the triple contract value, however, at most to €10.000.-, as far as nothing contrary was agreed between the parties in written form. Contract value is the price for the delivery of subject of contract.

10.3 The regulations mentioned above shall not be applicable to liability for personal injury and legal product liability.

10.4 ICSL is especially not liable for the consequences of breakdowns and interruptions caused by unexpected or exceptional circumstances, e.g. force majeure, internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of ICSL, acts of government, disruptions and other defects of the direct or indirect network connection, acts of third persons regarding the network as well as other circumstances for which neither of the parties is answerable or necessary and useful technical measures (e.g. maintenance).

10.5 ICSL is obliged to regular data backup in required scope. ICSL especially shall protect its systems against unauthorized disclosure, storage, modification as well as other unauthorized access and attacks in any form by third persons. Therefore, ICSL takes adequate measures according to the best available technology in required scope, especially to protect its infrastructure against viruses and other defective programs or program routines.

However, ICSL is not responsible, if a third person succeeds to reach and to use these data in an illegal manner. The customer accepts that it is not possible to avert any possible form of attacks – especially regarding future, not yet known forms of attacks – and that ICSL is only responsible according to the measures that are customary and reasonable in market, especially because not every network component is in the sphere of influence of ICSL and the end devices of the customer and the applications on these end devices as well as the network that the customer is involved in cannot be protected or influenced by ICSL.

10.6 ICSL delivers particular products only to military, police units, authorities and governments and only for professional use (details can be seen in the Products/Services Catalogue of ICSL). In case that a customer should use such a product for other as the intended purposes in spite of the notification of ICSL, he shall indemnify hold ICSL harmless of any resulting damages and/or claims of third persons.

10.7 ICSL expressly points out that in case of using particular products the customer shall comply with the Telecommunications Acts of the respective country in which he is using the product. The customer especially shall not compromise the public networks in any way. ICSL shall not be liable if the customer violates this regulation.

10.8 In case that the customer needs an end-device – that is to be provided by the customer himself – in order to use any products or services offered by ICSL, ICSL shall not be liable for the functional efficiency of the end-device.

10.9 ICSL carries out the offered services with highest diligence, reliability and availability. Except of the regulations of §9 Product Liability Act, ICSL assumes no liability that these services can be provided without interruptions, that the connections can always be established or the stored data will be preserved in every case.

10.10 ICSL acts with the highest diligence and according to the best available technology when establishing and/or testing of firewalls. However, ICSL expressly points out that absolute security (100%) of firewall-systems cannot be warranted. Any liability of ICSL from the title of warranty or indemnity for possible damages caused by the fact that firewall-systems installed by the customer were passed or taken out of operation shall be therefore excluded.

10.11 ICSL is not obliged to check stored and/or transferred data and documents regarding content, correctness or completeness and therefore ICSL is not liable for the content, correctness or completeness of transferred data and documents or for the content and completeness of data and documents that are made accessible by the services of ICSL. ICSL is not liable for acts of third persons regarding the network and accepts no responsibility for harms that were caused by third persons to the customer in the course of mains operation or failure of mains operation.

10.12 Compensation claims prescribe within the period mentioned in 9.5. In cases of violation of the contractual duties on purpose or gross negligence, fraudulent concealment of defects as well as compensation claims according to the Product Liability Act, the statutory periods of limitation shall be applicable.

10.13 As far as the liability is limited, this limitation shall also include the personal liability of associates, employees, agents and assistants of ICSL.

 

11. Return of Test-Devices

11.1 In case that the customer has individually agreed with ICSL the possibility of testing any products and the customer falls behind with the return of the products or systems that were delivered to him for a limited use or a short test-period, ICSL shall be entitled to charge an aliquot fee for the period that exceeded the agreed test-period – irrespective of other agreements between the parties.

11.2 The fee mentioned above will be charged according to the usual expected useful life or according to the warranty period of the delivered device. In case of devices and systems that require a special start-up by the customer – for example: the personalization of Smartcards via fingerprints on the device itself – this means a limitation in re-utilization or re-sale of these devices for ICSL. If so, ICSL shall be entitled to charge the full price for the devices according to the price list or agreement and to leave these devices finally to the customer´s further use.

 

12. Assignment of Rights and Duties, Transfer of Title

12.1 The transfer of rights and duties from the contract to third persons by the customer as well as the transfer of the complete contract to third persons requires the prior expressly written consent of ICSL. This shall also apply to any other form of granting rights – e.g. granting of a license or sublicense, which is only allowed after individual written agreement between the parties, for example in form of a Reseller Agreement – as well as any other actual or legal disposal of the contract in its entirety or partly.

12.2 In case that ICSL accepts the continuous use of the services by a third person, the respective rights and duties shall be transferred to this third person. Disregarding of the transfer, the customer stays responsible towards ICSL for any and all payables from the period before transfer. Furthermore, in case of violation of the contract by the third person, the customer shall indemnify and hold ICSL harmless and already assign any claims resulting from the transfer to ICSL including all securities against the purchaser in order to safeguard the receivables.

12.3 ICSL is in its own name and on its own expense entitled to commission a third person with the implementation of the contract or single contractual services after prior written information of the customer, unless the interest of the customer is affected.

12.4 ICSL shall also be entitled to transfer single rights from the contract between the customer and ICSL on the basis of §§1392 Austrian Civil Code (factoring, cession) to third persons.

12.5 Any and all rights and duties from the contract shall be transferred to the respective legal successor. Except the case of universal succession, every party of the contract is obliged to transfer the rights and duties from the contract to the legal successor.

 

13. Duration of the Contract

13.1 Contracts for the performance of a continuing obligation / service agreements (e.g. rental of products, software license agreements, maintenance contracts etc.) shall be basically unlimited.

13.2 It shall deemed as stipulated that both parties expressly waive from termination before end of two (2) years as far as nothing contrary was agreed in written form. The exact duration of the termination waiver may vary depending on the type service.

13.3 Either party may terminate an unlimited contract for the performance of a continuing obligation / service agreement with registered letter to the other party 90 days before end of termination waiver, whereas the date of the post mark shall be effective.

13.4 In case that the customer does not terminate the contract within the period mentioned above, the contract for the performance of a continuing obligation / service agreement will be prolonged automatically for one (1) year.

13.5 The regulations mentioned above do not affect the indispensable right of termination from important cause. As important cause shall especially be deemed the non-capacity of the other contractual party to act, the violation of legal regulations as well as the non- or misperformance of the contract. ICSL shall especially be entitled to terminate the contract for the cause of death of the customer, delayed payment, non-provision of the advance or initial payment as well as other possibly agreed deposits, suspicion of misuse of the services or gross deficits of the customer with performance of his cooperation duties or other essential contractual duties. In this case, ICSL shall be entitled to claim the payment of all services until termination date and indemnity of any dwell times or frustrated expenses for the time after.

13.6 The change of the enterprise or brand name of ICSL or the change of the ownership structure within the company of ICSL shall not be deemed as important cause and therefore does not entitle the customer to extraordinary termination.

13.7 In case that one of the parties wants to prematurely terminate the contract for miscellaneous reasons, the contract shall be deemed as terminated if the other party declares its written acceptance and if the termination is in accordance with the following regulations.

13.8 In case of premature termination of the contract by the customer and acceptance by ICSL, ICSL shall be entitled to claim the payment of the continuous charges (license fees, charges for other services according to the contract) that would have to be paid by the customer for the regular duration of the waiver of termination respectively until expiration of the contract as well as an one-off payment for benefits (e.g. discounts in case of agreed waiver of termination), unless the customer can prove that ICSL is responsible for the premature termination of contract by gross negligence or deliberated intention. The amount of the one-off payment can be seen in the valid version of the price list of ICSL.

13.9 The regulations regarding obligation to confidentiality, data protection and obligation to inform shall stay effective for another period of five years after complete fulfillment of the contract through both parties and after termination of any agreements between the parties. This regulation shall also be effective in case that the contract ceases to exist for any other reason.

 

14. Export

14.1 In case that the customer exports the goods, he shall be responsible for the compliance with the relevant national and international import and export regulations. The customer especially shall obtain the relevant export license at his own expense.

14.2 When travelling to other countries – no matter if EU or third countries – the customer shall comply with the relevant laws of the respective country that might concern products offered by ICSL. If the customer should violate this regulation, he shall indemnify and hold ICSL harmless of all resulting consequences.

14.3 As far as the customer´s headquarter is outside the EU, the delivery obligation of ICSL is under reservation of the lawfulness according to Austrian and relevant international import and export regulations.

 

15. Export Certificate, Value-Added Tax (VAT)

15.1 If a customer, who is not resident in Austria (foreign purchaser), or his representative picks up, transports or sends goods to a third country, the customer shall be obliged to provide ICSL with the export certificate for tax purposes.

15.2 In case that this certificate won´t be provided, the customer shall be obliged to pay the within Austria effective VAT on the invoice amount for the delivery.

15.3 In case of delivery from Austria to other EU-Member States, the customer shall notify ICSL of his VAT identification number under which he realizes his acquisition taxation within the EU before delivery. Otherwise the customer shall be required to pay the VAT that ICSL is legally obliged to pay on its deliveries in addition to the agreed purchasing price.

 

16. Financing

16.1 ICSL offers to its customers the possibility of leasing particular products of ICSL.

16.2 ICSL offers this Leasing Option in cooperation with a leasing partner. The conditions for leasing are defined by this partner. ICSL therefore cannot guarantee to the customer that a leasing contract will come about; a leasing contract is especially based on the credit rating of the customer.

16.3 Any calculations of possible leasing rates mentioned by ICSL shall be non-binding for ICSL. The leasing rates will be calculated for each customer individually and are based on different factors (credit rate of the customer, duration of the leasing contract, value of the products etc.).

16.4 In case that the customer chooses the leasing option, he accepts that – in the course of the revision if a leasing contract with the partner company of ICSL will come about – his data (name, address etc.) are transferred to the partner company.

16.5 ICSL shall not be liable for any possible claims from the leasing contract.

 

17. Data Protection

17.1 These data protection regulations shall be effective for all products, services and websites of ICSL, associated companies and partner enterprises.

17.2 ICSL only collects personal data in the scope that the customer provides them to ICSL with his acknowledgment and voluntarily by active input. ICSL will only process and use the personal data as far as it is necessary for the implementation of the services as well as transaction of requests and orders and as far as it is regulated by law respectively permitted by law.

17.3 Only in case that the customer has given his expressly permission, ICSL might use the personal data for the purposes of advertising, especially as reference on the website of ICSL (www.icsl.at) with enterprise name and logo as well as for the setting of services of ICSL.

17.4 The customer is entitled to withdraw from his former consent at any time.

17.5 ICSL will only transfer the data to third persons without the consent of the customer, if ICSL is legally obliged to do so. ICSL will not link the data with other data.

17.6 The customer is entitled to request information about his data stored by ICSL – these are those data that the customer provided to ICSL voluntarily within a request or order – at any time and free of charge. Furthermore, the customer is entitled to request the cancelation of the personal data that he transferred to ICSL. However, data that serve as a basis for an already existing business relation are excluded. To request a cancelation of the personal data, it shall be sufficient for the customer to send an e-mail or letter to ICSL.

17.7 The parties shall comply with any relevant data protection regulations and shall obtain the necessary security measures according to §14 Austrian Data Protection Law 2000.

 

18. Severability Clause

The inoperativeness of one or several provisions of these General Terms and Conditions of Sale does not affect the validity of the remaining provisions. In such case the parties of this contract oblige to arrange a provision that is applicable and which meets best the legal and economic aim of both parties.

 

19. Place of Jurisdiction and Applicable Law

19.1 Place of jurisdiction for any and all dispute resulting from contracts with the customer shall be the Court of Commerce in Vienna. ICSL shall also be entitled to sue the customer at his own general place of jurisdiction.

19.2 The Austrian law shall applicable to any legal relations between the parties; the most recent version of the “UN Convention on Contracts for the International Sale of Goods of April 11th 1980” shall be excluded.