of the company NOW CONSULTIANS GmbH & Co. KG (hereinafter called „Now Consultians“)
The following conditions of sale, delivery and payment apply to all contracts and pre-contractual negotiations with our business partners, regardless of the type and scope of services for current and future business relations, as well as future contracts unless no other significantly deviating written agreements have been agreed upon. They are acknowledged upon the placement of an order or acceptance of service. Any contrary terms and conditions of our contract partners or third parties are only accepted if Now Consultians expressly agreed upon in writing or the contract partner has parti cularly objected in writing. If you should not be in agreement, you should inform the company of this immediately in writing. In this case, we reserve the right to withdraw our offer without any claims whatsoever being levied against us. Now Consultians explicitly rejects standardized reference to a customer’s own business terms and conditions.
2.1. All offers by Now Consultians are subject to change and non-binding. To become legally valid, all orders shall be confirmed in writing or implied as acknowledged upon execution by Now Consultians. This also applies to additions, changes or supplementary agreements. 2.2. Basically Now Consultians enters into a contractual obligation only when the nature, scope of service and deliverables of the counterpart are agreed upon in writing by the parties. Subsequent oral amendments and additions will not take effect until they have been confirmed in writing. The same applies to all declarations of intent, particularly complaints, reminders and defects within the contractual relationships. 2.3. Drawings, diagrams and other service data are only binding if expressly agreed in writing.
3.1. Generally, the prices result from the respective applicable offer, to which Now Consultians adheres for 15 working days from the offer date, unless a shorter period is stipulated. Specifically, these are prices in Euros named in the order confirmation by Now Consultians plus the legal value-added tax. Additional supplies and services or those not specified are calculated separately according to the prevailing market price. 3.2. If there is no offer, contract partners are advised that Now Consultians’s order confirmation uses prices from the current price list at the time the order is received. These can be submitted by Now Consultians upon request at any time or viewed there. Now Consultians is entitled to change and adjust the price list at any time upon previous notice of two months to the existing contract partner. In this case the counterpart is free to terminate the contract with a 10 workings days period.
4.1. The delivery deadlines suggested by Now Consultians are not binding, unless the compliance with the delivery deadline is explicitly confirmed beforehand in writing by Now Consultians. 4.2. Delivery and service delays due to force majeure and because of events that make delivery for Now Consultians difficult or impossible—including post-contractual procurement difficulties that may arise, even if they occur at Now Consultians´s suppliers or their subcontract partners – entitle Now Consultians to postpone the service for the duration of the hindrance plus a reasonable start-up period, or because of the part still unfulfilled to withdraw from all or part of the contract. If this partial withdrawal of the contract is objectively not possible, then all services that have already been provided need to be hold back mutually by both contract partners. 4.3. If the delay lasts an unreasonable period of time or at least more than three months, counterpart is entitled after a reasonable and notified lapse of time, with regard to the still unfulfilled part, to withdraw from the contract. If the delivery time is extended or Now Consultians wants to be free of its obligation, contract partner cannot derive claim for damages from it. In the aforementioned circumstances, Now Consultians can only appeal if it notifies the contract partner immediately. 4.4. Both contract partners must mutually agree to contract penalties in writing. Now Consultians explicitly rejects to any standardized contractual penalties clauses. 4.5. If Now Consultians has caused the non-compliance with deadlines and dates of delivery and is in default, the counterpart shall be entitled to compensation for the delay according to the Austrian Corporate Code (UGB) is limited to a maximum of 9.2 % above the respective applicable base interest rate of the deliveries and services in question. Further claims are excluded, unless the delay is due to gross negligence or willful misconduct on the part of Now Consultians. 4.6. Deliveries are made at the expense of the purchaser. Risk is transferred after Now Consultians hands over property to a logistics partner or upon distributing it to the delivery address stipulated. 4.7. Now Consultians is entitled to make partial deliveries and services at any time as far as economically sensible and these can also be billed separately.
5.1. Payment is due within 14 days from date of invoice without discount, unless otherwise agreed. 5.2. Now Consultians is entitled, notwithstanding any other provisions of the contract partner, to offset payments on its previous debts, and will inform the contract partner about the type of settlement made. If costs and interest accrue, Now Consultians is entitled to payment first against the costs, then the interest and finally to the main service. 5.3. Payment shall be considered made when Now Consultians can dispose of the amount. In the case of checks, payment is considered made when the check is cashed. 5.4. If the counterpart is in default, Now Consultians is authorized without prior warning, to calculate default interest at the rate of 9.2 % above the respective applicable base interest rate, as well as other fees and costs. 5.5. If Now Consultians becomes aware of circumstances which place the creditworthiness of the contract partner in question, especially if a check of the contract partner is not honored or it discontinues payment or if Now Consultians knows of other circumstances that place the creditworthiness of the contract partner in question, then Now Consultians is entitled to declare that the whole of the outstanding debt is immediately payable, even if checks were accepted. In this case, Now Consultians is also entitled to demand advance payments or security fees. 5.6. The contract partner is only entitled to compensation, withholding or reduction, even if complaints or counterclaims are asserted, if the counterclaims are legally established or are undisputed. From the same contractual relationship, customer is also allowed withholding due to counterclaims.
6.1. Now Consultians remains owner of the goods until full payment of the receivables, including interest and costs as well as the complete redemption of bills and checks submitted, due and owing to it out of the entire business connection. 6.2. Contract partner will inform and immediately advise Now Consultians if any seizure to its property or other interventions by third parties of the goods takes place. Costs and losses are borne by the contract partner. Any relocation of the goods under retention of title is to be communicated to Now Consultians immediately in writing. If contract partner is guilty of breach of contract – especially for late payment – Now Consultians is entitled to take back the goods at the expense of the contract partner and if necessary to demand the assignment of the contract partner’s rights to recover possession against any third parties. 6.3. Now Consultians as manufacturer can perform processing or transforming, but without any obligation. If Now Consultians’s (co-)ownership expires through connection, it is hereby agreed that Now Consultians’s (co- )ownership of an integrated object of proportional value (invoice value) passes to Now Consultians. The contract partner shall take custody of the (co-)ownership for Now Consultians free of charge. 6.4. Contract partner is entitled to sell the goods in the ordinary course of business, provided he is not in default of payment. Pledges or security assignments are not permitted. Contract partner hereby assigns claims arising from the resale of or any other legal grounds (insurance, tort) concerning the goods entirely to Now Consultians. Contract partner accepts this assignment. Until revocation, contract partner is authorized to collect the claims assigned to Now Consultians for its account in its own name.
7.1. Counterpart shall inspect the goods immediately upon receipt for damage and shortages as well as possible defects, and inform about eventual shortcomings in writing right away, at least within 5 working days after receipt of the goods. Defects that cannot be determined within this period even after careful examination are to be communicated to Now Consultians immediately, at least within three days after discovery, in writing. 7.2. Returned goods must have the prior written consent of Now Consultians. 7.3. The warranty period is 12 months from delivery of the goods. The same deadline applies to claims for replacing consequential damages, as long as no tort claims are asserted. If Now Consultians’s operating or maintenance instructions are not followed, product changes made, parts replaced or materials used that do not meet the original specifications, this warranty is cancelled, if the contract partner does not refute in a correspondingly substantiated claim that one of these circumstances has caused the defect. 7.4. If Now Consultians is responsible for a defect, Now Consultians is entitled at its option to repair the defect or replace the goods. Should the repair fail for two times or if Now Consultians not prepared to repair the defect or replace the goods, or if this is delayed beyond a reasonable time, for reasons where Now Consultians is responsible, the contract partner is entitled to rescind the contract or to demand a reduction in the purchase price. Further claims of the customer, in particular claims for damages, including lost profits or other financial damages of the customer, are excluded. The above limitation of liability does not apply if the damage is caused by intent or gross negligence. This also does not apply if the customer claims damage compensation due to lack of guaranteed property. 7.5. Warranty claims against Now Consultians can only be made by the contract partner and are not transferable. 7.6. Programs (software) are subject to the following special warranty provisions: Now Consultians points out that according to state-ofthe-art it is not possible to create software completely free of errors. Opening the sealed disk packs signifies the manufacturer’s license agreements are recognized. A subsequent return or exchange for another product is from that moment on not possible anymore. Program manufacturer’s warranty conditions are applicable. Now Consultians has carefully tested the software supplied and is not liable for damages resulting from incorrect programming. Furthermore Now Consultians does not warrant the software functions will completely fulfill all requirements of the customer or enable the customer to perform the software in all ways required by the customer. The software will perform according to the actual market standards of methods and technology without guarantee to be error-free operating.
Now Consultians is liable for intent and gross negligence according to the statutory provisions. For ordinary negligence, Now Consultians is liable only if there is a violation of an obligation whose fulfillment makes possible the proper execution of the contract, whose violation jeopardizes the achievement of the contract, and in whose fulfillment the contract partner regularly trusts (cardinal obligation) or in the event of default or impossibility. In case of liability for ordinary negligence, this liability is limited to damages that are foreseeable or typical. This limitation of liability also applies to liability for simple negligence in the case of an initial inability on the part of Now Consultians. A liability for the lack of assured properties, malice, personal injuries and defects remains unaffected according to the Product Liability Act and the Data Protection Law (Datenschutzgesetz; in short: DSG). In case of an Now Consultians’s claim is due to liability, a negligence of the customer must be adequately taken into account, especially when there are inadequate error messages or insufficient data backup. Insufficient data backup exists especially if the customer has failed to make adequate arrangements to use corresponding state-of the-art security measures against external events (particularly against computer viruses and other phenomena), individual data or an entire database. The statute of limitations for nonessential contractual breaches is limited to two years.
9.1. Our entire business relationship with our customers is subject exclusively to the Austrian law. If this law refers to foreign legal systems, such references are invalid. The UN Convention on the International Sale of Goods (UNCITRAL) is expressly excluded. 9.2. Now Consultians’s location is the place of performance and court of jurisdiction for all resulting litigation disputes arising directly or indirectly from the contract. Upon its option, Now Consultians may sue the contract partner at its registered office. If contract partner is not a merchant of the Now Consultians , national law applies. 9.3. Now Consultians is entitled to process data about the contract partner regarding the business relationship or in connection obtained with this, whether it comes from the contract partner itself or from third parties, according to the Data Protection Low (Datenschutzgesetz; in short: DSG). 9.4. If any single provision of these contract terms or subsequently concluded individual agreements becomes wholly or partially invalid, this shall not affect the validity of the remaining clauses. The invalid provision shall be replaced by another, which best reflects the business purpose of the invalid provision and which is valid itself. 9.5. The nature, content and scope of mutual services shall be determined in particular by: – the order form from the customer‘s procurement department (»the order«), – these Terms and Conditions and – guidelines and technical standards for work or services covered by the contract or comparable services in general use at the time the contract is signed. 9.6. In the event of conflicting provisions, these regulations shall apply in the above order of priority and the German version shall prevail.