General terms and conditions of APRO Kassensysteme GmbH

General provisions

• This is a convenience translation; only the German version is legally binding. All offers, acceptances of orders, conclusions of contracts and other legal declarations are made exclusively on the basis of these terms and conditions. Deviations from them, in particular through the sending of our customers' own terms and conditions to the contrary, only apply if we have expressly acknowledged them in writing.
• Our offers are always subject to change and non-binding until the contract is finally concluded; a legally effective contract is only concluded when an order confirmation is sent to the customer or when the customer signs the order form. The content of the contract results exclusively from the order confirmation or the order form; the customer must request any amendments to the order confirmation in writing immediately upon receipt.
• Prices are net prices plus ancillary costs such as shipping costs, packaging, transport costs and the like. For repair and servicing orders, travel time and travel costs are charged separately, with the first commenced hour charged in full and each additional commenced half hour charged thereafter. Cost estimates are non-binding and subject to a charge unless an order is placed in connection with the cost estimate.
• APRO is entitled to apply the customer's payments first to older debts; any contrary allocation of payments by the customer shall be disregarded.
• The customer is not entitled to withhold payment or to set it off against claims of APRO unless the customer asserts claims that have been acknowledged by APRO or established by a court. Stated delivery dates are only to be regarded as fixed dates if they are expressly designated as such.
• Risk passes to the customer upon handover of the contractual goods to the customer or to the carrier, or upon notification that the goods are ready for collection. If unforeseen technical difficulties arise that lie in the nature of the order and make its execution unreasonable for APRO, APRO is entitled to withdraw from the contract without any obligation to pay damages.
• The warranty period is 6 (six) months and begins upon handover of the contractual product to the customer. Any defects must be notified in writing without delay. The customer must prove that the product is defective. Warranty claims are excluded if the contractual products have been handled improperly or if there is inadequate maintenance on the part of the customer, contamination or use of unsuitable accessories; in any case also if the customer has acted contrary to APRO's instructions.
• APRO shall not be liable for consequential damage caused by defects or for pure financial loss; otherwise, damages shall only be paid in the event of intent or gross negligence and shall in any case be limited in amount to the invoice amount.
• APRO makes deliveries exclusively subject to retention of title. The customer is obliged to inform any third party of APRO's ownership. Should third parties assert claims to products subject to APRO's retention of title, the customer undertakes to notify APRO thereof without delay and shall indemnify APRO against all costs arising in connection with the enforcement of APRO's ownership rights.
• The invalidity or ineffectiveness of any provision of this contract shall not result in the invalidity or ineffectiveness of the entire contract. Rather, both contracting parties undertake to replace such provisions with provisions that fulfil the economic purpose of the contract in the same way.
• The exclusive place of jurisdiction for all disputes arising from this contract is Amstetten. This contract is governed by Austrian law, excluding the conflict-of-law rules of private international law and the UN Convention on Contracts for the International Sale of Goods. Amendments and additions to the contract must be made in writing and must be expressly identified as such.

• APRO is the manufacturer of computer software, documented on data carriers and in writing, and holds the distribution rights to it. The distribution right includes the authority to grant third parties, in APRO's own name and for APRO's own account, a perpetual, non-transferable right of use. All further rights to the software always remain exclusively with the manufacturer or the authors. They are not transferred to the licensee by the following provisions.
• Use is permitted exclusively for the licensee's own purposes; making programs or copies of programs available to third parties is prohibited. Reproduction of the programs, of whatever kind and onto whatever medium, with the exception of one backup copy expressly marked as such, is not permitted, even for own use, unless the reproduction serves decompilation under the strict conditions of Section 40e of the Austrian Copyright Act (Urheberrechtsgesetz). Copies for multiple use must be obtained from APRO.
• These provisions also apply if the programs are financed through a leasing company. In this case, only the first lessee is entitled to use them. After expiry of the contract with the first lessee, the leasing company may extend the contract or permanently make the programs available to the first lessee for use, either against payment or free of charge. However, neither the lessee nor the leasing company is entitled to make the programs available to a third party for use.
• APRO provides the licensee with the programs in machine-readable form on a data carrier together with the associated user manual. APRO's performance obligation covers only the delivery of the object code, not the delivery of the source code.
• Provided the software requirements permit and APRO is able to do so with reasonable effort, APRO undertakes to adapt the programs against payment in the event of a change to the operating system. The costs of the new operating system and of the adaptation shall be borne by the licensee.
• The contracting parties agree that it is not possible to develop computer programs in such a way that they are free of errors under all conditions of use. The specification of the software programs serves to describe the subject matter of the contract and does not contain any warranty-related assurances. If the manufacturer fails, within a reasonable period, to eliminate the errors by rectification or to work around them in such a way that the licensee can use the program in accordance with the contract, the licensee may demand a reduction of the licence fee or rescission of the licence agreement. Further claims, in particular claims for compensation for consequential damage caused by defects, are excluded. The licensee is obliged to provide APRO with verifiable documentation on the nature and occurrence of the defect, to cooperate in isolating errors and to support APRO in remedying defects. The warranty does not extend to defects caused by deviation from the operating conditions intended for the program and set out in the specification. In particular, no warranty is given for errors and malfunctions caused by operating errors or by the IT system. The licensee is obliged to follow the manufacturer's operating instructions.
• APRO is liable for damage to the extent that it is based on intent or gross negligence. The above provisions apply to all claims for damages irrespective of the legal basis, such as positive breach of contract, culpa in contrahendo, tort, etc.
• The licensee bears sole responsibility for selecting the software program with regard to hardware compatibility, the specification desired by the licensee, the intended purpose and economic success.
• The licensee is obliged to back up data and, in the event of any loss of data, must ensure by keeping the data available in machine-readable form that the data can be reconstructed with reasonable effort.
• For each case of culpable breach of contract, the licensee submits to a contractual penalty in the amount of the first licence fee. This does not affect the assertion of any damage incurred by APRO. The contractual penalty is not subject to judicial mitigation.
• The licensee undertakes to comply independently with all relevant statutory provisions and regulations in connection with the use of the software concerned and to indemnify and hold APRO fully harmless in this respect.