GTC – General Terms and Conditions of Business

Version 1.0 of 01.03.2017

 1       Scope

1.1    These General Terms and Conditions of Business (“GTC”) and the loss of the right of rescission for consumers in cases of distance selling contracting pursuant to the Austrian Consumer Protection Act (German acronym: “KSchG”) and the Distance Selling and Field Sales Transaction Act (German acronym: “FAGG”) provided under Sec. 7 hereof shall, unless expressly otherwise agreed, apply to contracts concluded via our website  https://www.storeya.net (“Website”) between StoreYA! GmbH, Ferdinandstraße 13/3/43, 1020 Vienna, FN 407510f, phone: +43 (0)6604124060, email: office@storeya.net, (“We”, “Us”) and the Customer.

1.2    With respect to the use of our products, our Terms and Conditions of Licence (which may be downloaded from: Insert link) shall apply in addition to these GTCs for purchases of our products. A separate contract for maintenance of our products is required.

1.3    By submitting his or her declaration of contract (see Sec. 2), the Customer is deemed to accept these GTCs and the Terms and Conditions of Licence. Contracts can only be concluded on these terms and conditions. Any terms and conditions of business of the Customer which depart from, which are in conflict with, which limit or supplement the present GTCs must be expressly consented to by Us before they may be deemed incorporated as an integral part of the contract in any individual case. In particular, acts of contract performance on our part shall not be deemed any consent to any terms and conditions of business which might depart from our GTCs.

1.4    In cases of multiple contracts which are made at separate points in time, the GTCs in the version published by Us and in effect at the time the Customer has provided his or her declaration of contract (see Sec. 2) shall in each case apply. Multiple contracts concluded with one particular Customer shall, without any express written agreement of a framework agreement, neither create any long-term contract of obligation nor any other claim for the renewed conclusion of a purchase agreement.

1.5    We reserve the right to unilaterally amend these GTCs at any time with respect to the future. The version of these GTCs which is in effect from time to time shall be published by a version referenced under the heading “GTCs”. By concluding a contract and accepting the valid version of these GTCs following publication of amendments, you are deemed to submit to such new terms and conditions. This shall have no impacts on contract relations which already exist.

 

2       Formation of contract

2.1    The presentation of our products on our Website does not constitute an offer in the legal sense of that term. Offers shall in each case be made exclusively by the Customer on the basis of Sec. 2.2.

2.2    On our Website, the Customer is deemed to submit his or her offer by placing an order for the product. [Please depict the order process here] The Customer’s offer becomes binding when the Customer clicks on the “Place a legally binding order”. Please note that, following receipt of the Customer’s order by Us, We will send a separate confirmation of our receipt of the Customer’s orders. However, a confirmation of this kind shall not yet be deemed to constitute an acceptance of the Customer’s offer. Our acceptance is provided only by separately forwarding an order confirmation or by actually providing the products the Customer has ordered. We shall be entitled to accept orders only in part or to refuse orders without the need to specify reasons for this.

2.3    We also offer our Customers the option to test several of our products for a period of 14 days free-of-charge. There is no separate contract required for this purpose. These products are accordingly labelled  “Test version” and  [please insert: further terms and conditions]. In the event that the Customer decides to download a test version, this shall not give rise to any obligation to make payment or to make purchases in future. However, our Terms and Conditions of Licence shall also apply for the duration of our Customers’ use of the test version.

 

3.      Registration on our Website, Website access

3.1    Prior to the Customer’s initial order, the Customer must register on our Website.

3.2    The Customer must be at least 18 years old and thus have full legal competency. By forwarding the registration form, the Customer is deemed to confirm the correctness of his details, in particular, his name, age and address.

3.3    Upon our receipt of the registration, the Customer shall be assigned an access code, which will be forwarded to the e-mail address provided by the Customer during registration. Using that access code, the Customer may log-in on our Website and place orders. We reserve the right to reject/revoke an application of a registration or an existing registration, without the need to specify reasons for doing so. However, in the event of our revocation, this shall have no effect on contracts           which have already been formed but not yet fully performed. Such contracts must be fully performed by both parties.

3.4    The Customer shall be responsible for keeping the access code confidential. We are only able to assess whether an access code matches a Customer authorisation We have duly granted. We shall bear no further duty to monitor beyond this. Any person logging-in on our Website using a Customer authorisation We have released and the associated access code is deemed authorised to submit orders with legal effect on behalf of the Customer registered thereby.

3.5    We shall bear no liability for outage-free operation of our Website. We are entitled at any time to carry out works entailing a shut-down/disruption to our Website, including without providing any prior notice of this. Furthermore, We shall not have any obligation to furnish any specific server capacity, such that Customers must anticipate overloads and slower response times.

 

4.      Prices

4.1    The prices indicated on our Website are final consumer prices and include the legal rate of VAT. We shall notify the consumer of all additional delivery, shipping or other charges before the Customer submits his offer, provided that such charges may be reasonably calculated in advance. Where such charges cannot be reasonably calculated in advance, We shall advise the Customer of the potential for incurring such additional charges before the Customer submits his or her offer.

 

5.      Terms of payment

5.1    Unless otherwise agreed in writing, our receivables shall be fully due without deductions following the formation of our contract with the Customer and thus before the Customer is able to download the products he or she has ordered.

         Payment of the purchase price is possible by the following payment methods: PayPAL, Mastercard, Visa. For this reason, the amount of the purchase price shall be deducted from the credit card indicated to Us by the Customer upon our acceptance of the Customer’s offer where the Customer elects to pay by credit card, or from the Customer’s PayPAL account, where the Customer elects to pay via PayPAL. In cases of payment upon invoice, our claim shall be payable without delay upon receipt of our invoice, and shall fall due no later than 14 days later, and shall be transferred to the account We have indicated.

5.2    Upon complete payment pursuant to Sec. 5.1, the Customer shall receive an invoice by e-mail from Us, which We shall forward to the e-mail address he has indicated to Us.

 

6       Downloads of our products

6.1    We shall furnish the Customer with our products following full payment for them in the form of digital content which is not stored on any physical storage media, provided that the Customer expressly consents that the download is intended to have occurred previously, and acknowledges that the Customer thereby loses his or her right to rescind the contract pursuant to the provisions in Sec. 7 of these GTCs.

6.2    Delivery periods shall be deemed extended by all circumstances which are independent of party intent, such as cases of force majeure, unforeseeable operational disturbances, interference by regulatory or administrative authorities, delays and defaults in shipping and customs clearance, transport damage, defects of important manufacturing parts and labour conflicts. In such cases, the delivery period shall be deemed extended by the period of the impediment.

6.3    Our products are subject to the Terms and Conditions of Licence to which a link has been set in Sec. 1.2. The Customer’s authorisation to use our products is permitted only within the scope described therein.

6.4    Upon full payment, We shall forward to the Customer the product key needed for activating our products, which We shall send the Customer by the e-mail referenced in Sec. 5.2. Following a successful download and installation by the Customer, the programme will be activated on our servers through the use of the product key sent to the Customer when the product is launched for the first time. This is the only way by which successful activation is possible.

6.5    Following successful activation, the Customer shall receive a licence key by e-mail from Us, by which We release the product for the Customer’s use.

 

7       Rights and consequences of rescission for consumers where contracts are formed in distance selling transactions pursuant to KSchG or FAGG

 

7.1    The following section shall apply to contracts on the basis of these GTCs for delivery of data not contained on a physical data storage medium, which are created and provided in digital form (“digital content”), such as downloads of software, computer programmes, applications (apps), games, music, videos or texts.

7.1.1  Pursuant to Sec. 18 (1) FAGG, it is, in particular, noted that the consumer shall have no right of rescission when entering into contracts for the delivery of digital content not stored on a physical data storage medium, such as software for downloading, where – with the express consent of the consumer, together with the consumer’s acknowledgment of his or her loss of the right of rescission in the event of premature commencement of contract performance and after a counterpart or confirmation has been provided under Sec. 5 (2) FAGG or Sec. 7 (3) FAGG – the entrepreneur has commenced to effect the supply of the product before expiry of the rescission period under Sec. 11 FAGG.

7.1.2  Thus, in cases in which digital content is being supplied, the Customer must at the time of forwarding his order from the basket, consent expressly to our performance of the contract. In addition, the Customers must simultaneously confirm that they have acknowledged that they shall lose their right of rescission upon our commencement of contract performance.

7.1.3  In the confirmation of contract by e-mail, by which We accept the Customer’s binding offer, We will, in addition, once again note the Customer’s consent and acknowledgement as referenced in Sec. 7.1.2 hereof.

 

8.      Statutory warranty

8.1    In the event of defects of our products, the statutory warranty rules shall apply for our Customers, unless otherwise agreed below in respect of contracts with entrepreneurs. No warranty shall be deemed to apply in the case of damage or losses arising as a result of improper use or handling of the product by the Customer or by third parties whose actions cannot be attributed to Us. The same shall apply in respect of normal wear and tear.  

8.2    The product depictions and descriptions on our Website and/or in our folders may deviate from the appearance of the actual products in terms of colour and size, due to resolution and the size of images. The products being provided shall be deemed in line with our contract if they comport with the other product specifications.

8.3    If the Customer is a consumer within the meaning of the KSchG, the Customer shall, to the greatest extent reasonable, examine the product upon receipt/download for completeness, correctness and to ensure that it is otherwise free of defects and shall notify Us of any potential effect by e-mail, to [Address]
and briefly describe them. The purpose of this is merely to enable more rapid and effective handling of any complaints of defects. A breach of this duty shall not give rise to any limitation on the consumer’s statutory warranty rights.

8.4    Where the Customer is an entrepreneur, it shall, to the greatest extent possible, examine the products provided to it upon receipt for completeness, correctness and to ensure that they are otherwise free of defects. In the event that defects are found, the Customer shall issue a complaint regarding these within a reasonable time, but in any event no later than four calendar days of its receipt of the products, by e-mail to [Address]. Where, within the complaint period, the entrepreneur does not issue any notice of complaint, the delivery shall be deemed approved and the entrepreneur shall thus be deemed to forfeit any and all claims such as claims for warranty, challenge for mistake or compensatory damages for a deviation or defect which is asserted subsequently (sec. 377 Austrian Entrepreneurial Code [German acronym: UGB]). This shall also apply with respect to any incorrect deliveries or deviations in terms of quantities delivered.

8.5    Where the Customer is an entrepreneur, the exclusive right shall be vested in Us to elect a remedy to eliminate or remediate a defect which has been timely notified to Us. We shall also be at liberty to immediately rescind the agreement.

8.6    Where the Customer is an entrepreneur, the Customer shall bear the costs of returning the products to Us for our repair/replacement of them.

 

9.      Liability

9.1    We shall be liable for damages pursuant to the applicable provisions of law. However, We hereby disclaim liability for losses created by slight negligence. This limitation on liability shall not apply to losses arising from injury to life, limb or human health and to claims under the Austrian Product Liability Act.

9.2    Customers who are entrepreneurs shall be required to prove intentional acts or omissions or gross negligence and to assert claims for compensatory damages within a period of one year from the date of passage of the risk. The terms and conditions regarding compensatory damages contained in or otherwise agreed in these GTCs shall also apply where the claim for compensatory damages is asserted in addition to or in lieu of a warranty claim.

9.3    Where the Customer is an entrepreneur, any and all claims for recourse within the meaning of Sec. 12 of the Austrian Product Liability Act shall be deemed precluded except where the party entitled to assert a claim for recourse proves that the defect was caused by a party or parties within our sphere of influence and the level of culpability is at least one of gross negligence.

 

19     Prohibitions on retention

10.1   Well-founded complaints shall not be deemed to entitle Customers who are entrepreneurs to retain the entire amount of the invoice, but rather only a
reasonable portion thereof. The foregoing shall not be deemed in any manner to limit the statutory right of retention of consumers.

 

11     Data protection, change of address

11.1   Personal data disclosed to Us by Customers in connection with our business relations such as names, addresses, e-mails, telephone numbers are stored and processed by Us. We shall use such data within the scope of our statutory authorisation in order to execute the Customer’s order. By clicking the box on the Customer’s consent under data protection law, the Customer is deemed to expressly consent to the storage and processing of the personal data disclosed by the Customer in the course of contract formation (such as name, address, e-mail, telephone number), including for our own marketing purposes and thus, in particular, for purposes of our despatch of text messages and e-mails for advertising purposes pursuant to Sec. 107 of the Austrian Telecommunications Act [German acronym: TKG]. There shall be no further disclosure of personal data to third parties beyond the foregoing. Both consents may be revoked at any time (e.g. by e-mail to [Address] or another contact option referenced at Sec. 1), and may be revoked separately.

11.2   The Customer is obliged to notify Us immediately of any changes of the Customer’s residential or business address and contact data whilst We continue to have an ongoing business relationship. Where the Customer fails to provide such notice, then declarations shall be deemed to have been properly received wherever they are forwarded to the address most recently provided to Us by the Customer.

 

12     Place of performance, jurisdiction and venue, choice of law, miscellaneous

12.1   The place of performance for all goods and services to be furnished on the basis of these GTCs is our company’s registered office at Ferdinandstraße 13/3/43, 1020 Vienna.

12.2   In the case of transactions with entrepreneurs and in the case of consumer transactions as to which the consumer neither has any place of residence or ordinary residence within Austria at the time of initiation of the action, nor was employed within Austria, the exclusive jurisdiction and venue for all disputes arising out of this contract shall be the court with geographical and subject-matter jurisdiction over 1020 Vienna. Where the Customer is an entrepreneur, this exclusive choice-of-venue rule shall in any event apply. Our right to apply to any other court with jurisdiction over the Customer in such case shall remain unaffected by the foregoing.

12.3   This agreement and the relations of the parties shall be governed exclusively by the substantive law of the Republic of Austria, excluding its choice-of-law rules
and the UN Convention on the International Sale of Goods. In the case of consumers, this choice of law shall only apply to the extent that it does not displace mandatory legal rules of the country in which the Customer’s ordinary residence is located.

12.4   In the event that individual terms of these GTCs are invalid in whole or in part, this shall not affect the validity of the remaining provisions hereof or of contracts made thereunder. Exclusively in the case of contracts with entrepreneurs, any term which is invalid in whole or in part shall be deemed replaced by a term coming as close as possible to the meaning and purpose of the invalid term.