Terms & Conditions of MAKAM Market Research GmbH
1. Applicability and validity
These General Terms and Conditions apply for all legal transactions of MAKAM Market Research GmbH (hereinafter referred to as “Contractor”) with contractual partners that are not consumers within the meaning of § 1 subsection 1 number 2 KSchG (Austrian Consumer Protection Act). The Contractor shall accept orders, in particular for delivery of studies and research results as well as for rendering services, and sell and deliver exclusively on the basis of the following terms and conditions. They shall be acknowledged by the client upon placing of the order, at the latest however upon acceptance of the first delivery, and then apply for the full duration of the business relationship in the respectively applicable and published version. Different terms and conditions of purchase of the client and different terms and conditions and supplements contained in orders apply only upon written consent. This requirement may not be waived.
2. Offers, entering into contracts and contract content
Offers are always non-binding. Orders are always subject to acceptance. Distance sales orders are deemed to have been received when they can be retrieved by the Contractor. The order is deemed legally binding when a written or electronic order confirmation is sent (entering into a contract). If the Contractor cannot meet a delivery deadline requested in the order, the Contractor shall give notice of such within the scope of order confirmation. In this case, the client is entitled to withdraw from the order with written notification within 14 days of receipt of said notice. The client is responsible for selecting the products and for the results intended with them.
3. Electronic business transactions
Information and non-binding offers that are issued via network-supported electronic data processing will be issued as up-to-date as possible on the basis of the assortment and the capacities of the Contractor as well as its applicable price lists, they are however non-binding (pursuant to Point 2.). Orders or other constitutive declarations of the client may both be validly sent by using the electronic form provided by the Contractor and also by email, however, they require error-free receipt by the recipient to be valid. Transmission errors, with any cause whatsoever, shall be the burden of the client. The content of the order confirmations and confirmations of receipt sent (if applicable, also automatically) by the Contractor shall be reviewed by the recipient, and the recipient shall be obligated to give written notification of deviations from the message sent by it without undue delay, otherwise, the transaction will be made with the content confirmed by the Client.
4. Delivery
Insofar as nothing to the contrary is agreed, delivery shall be made at the expense and risk of the Contractor. Partial deliveries are possible. The client shall submit claims due to transportation damage immediately upon receipt of the product from the shipping company and from the Contractor in writing, at the latest however within 8 days. The Contractor is free to choose the way the product will be sent and the transportation medium. Electronic delivery to an address named by the client – where it is feasible according to the nature of the service owed and where nothing else has been agreed – is deemed on-time delivery. The provisions contained in Point 3 are applicable analogously in this case.
5. Default of acceptance
If the client does not accept the contractual object in due time, the Contractor is entitled to either set a subsequent deadline for it, dispose of the service object in another way and furnish the client with an appropriate extended deadline, or immediately invoice for the product and store it at the expense and risk of the client. The costs incurred through storage will be billed to the client after the passage of the second week following notification of readiness for shipment in the event that it is stored on the Contractor's premises, at the least however 1% of the invoice amount for each month started. The Contractor's rights to withdraw from the contract or demand damages due to non-performance under the legal preconditions remain unaffected by the above. If it demands damages due to non-performance, then 20% of the agreed price may be counted as compensation without proof. The right to assert a higher actual loss is reserved.
6. Delivery dates and deadlines
All specifications about delivery dates are non-binding provided that nothing else is stipulated explicitly. Explicitly stipulated delivery deadlines are met if the delivery item was sent or readiness for shipment has been communicated before they have passed. Objectively justified and reasonable changes to the service and delivery obligation of the Contractor, in particular reasonably missed deadlines, are deemed consented to by the client in advance. If a stipulated delivery date is missed by more than 30 days, the client is entitled to withdraw from the contract upon setting an additional subsequent deadline of at least 90 days via certified mail. The Contractor may also withdraw from the contract if delivery is made impossible due to force majeure, labour conflicts or other obstacles beyond the control of the Contractor. In both cases, the Contractor is only obligated to provide reimbursement interest-free for contractor payments received. Claims for damages by the client for late delivery or non-delivery even after the passage of a subsequent deadline are excluded in all cases. This does not apply in the event of malicious intent or gross negligence. If the above exemption from liability is invalid in the event of ordinary negligence, compensation for delay at a flat-rate of 0.5% per completed week of the value of the delayed delivery shall be stipulated by way of precaution, it however may not exceed a maximum of 5% of the value of the part of the delivery that was not delivered on time.
7. Prices and payment terms
The list prices published and applicable on the day of acceptance of the contract apply for all deliveries and services. All prices are listed in euro and excl. of statutory value added tax insofar as nothing to the contrary is specified. Invoicing shall take place either parallel to or immediately following each delivery. Payments are due upon receipt of the invoice without any deductions and expense-free. Bills of exchange and checks are not deemed as payment until they are cashed. Bill of exchange payments must be agreed in writing in advance. Discount charges and bank fees shall be paid by the client, and payments are not considered made until they are credited to the account without reservation. If the payment deadline is missed, interest in arrears in the amount of 2% above the respective line of credit loan rate p.a. of the Contractor, at least however annual interest in arrears of 13%, shall be due for payment. The right to assert further damage caused by default is reserved. The client is not entitled to withhold payments due to incomplete delivery, guarantee or warranty claims, or defects. Payments received by the Contractor first settle compound interest, interest and ancillary expenses, pre-trial costs, such as the costs of lawyers and debt collection agencies retained, then the capital owed beginning with the oldest debt. Offsetting against counterclaims by the client that have been disputed by the Contractor and that have not been established with final and lasting effect is not permissible. The client may only exercise a right of retention on the basis of counterclaims for the same delivery.
8. Reminder fees and debt collection fees
In the event of a payment default, the client is obligated to refund all pre-trial costs, such as any lawyer fees and costs of debt collection agencies, which the Contractor has incurred. Insofar as the Contractor sends reminders itself, the client is obligated to pay an amount of €10.50 per reminder sent plus other interest and costs that accrue. Furthermore, the client shall reimburse any further loss, in particular also losses that are incurred as a result of correspondingly higher interest rates accruing on any lines of credit of the Contractor due to non-payment, irrespective of debt from a payment default.
9. Warranty, guarantee and liability
All services and products shall be created upon careful research and according to the highest standard of professionalism. Since the Contractor is however dependent upon data material that is created by third parties and not all aspects that could be of interest for the client's decisions are always known to it and able be taken into corresponding consideration by it, the liability of the Contractor is limited: Notification shall be given in writing immediately upon receipt of each delivery for obvious defects, at the latest however within 10 days, and immediately upon discovery for hidden defects. The notification shall be sufficiently justified and proven with evidence. Warranty rights must be asserted within six months of transfer or delivery. The client shall give the Contractor the time necessary and the opportunity to remedy any defects and deliver any replacement goods as is deemed necessary, otherwise it shall be free from its liability for defects. Multiple attempts to remedy defects or make new deliveries are permitted. All further claims of the client (contractual and non-contractual) as well as claims for damages due to direct or indirect damage, lost profit and from applying the warranty, are excluded, provided that gross negligence or malicious intent has not been committed or that liability is compulsory for a lack of assured features. In the event of gross negligence, any damages are limited to the amount of the purchase price of the respective study. Claims under the Austrian Product Liability Act (Produkthaftungsgesetz) are excluded to the extent according to § 9 of said act and to the extent permissible by law in any case. No liability is assumed by the Contractor for the correctness of the information contained in the printed matter. If a defect notification is justifiably asserted, payments may only be withheld to an extent that is appropriately proportional to the proven defects. If return by the Contractor of a correctly rejected product is requested, then the shipping costs will be paid for by the Contractor, provided that the cheapest shipping method was chosen. Additional costs due to a more expensive shipping method shall be paid for exclusively by the client. Replaced deliveries shall be the property of the Contractor. Returns not agreed upon shall be stored by the Contractor with ordinary care for a reasonable period of time at the expense and risk of the client and shall not release the client from its payment obligation.
10. Copyright
All services of the Contractor are copyright protected. Unless another designation of authorship is made by the Contractor, the author shall be MAKAM Market Research GmbH. The dissemination, reproduction or publication (also as an exception and irrespective of the medium used) of the Contractor's works is prohibited, insofar as express written authorization has not been conferred for such. The right to edit as well as the right to make cuts, additions and changes is not transferred under any circumstances. In all cases, the Contractor remains generally entitled to use the works itself without limitation. Exploitation rights and ancillary copyrights concerning these services and deliveries shall be transferred exclusively to the extent that rights are granted in writing expressly and in detail. All exploitation rights and ancillary copyrights to the concepts and drafts of the Contractor as well as any other intangible property rights shall remain with the Contractor, provided that nothing else is agreed upon. Any granting of authorities or rights is deemed as the granting of a licence to use a work, but not as the transfer of a right to use a work. Designations of authorship attached by the Contractor shall not be removed and shall also be included in copies if reproduction is permitted by the Contractor. Otherwise, all pieces of work as well as all copies of them – irrespective of what mechanical, technical or electronic process they are created with – shall be furnished with the copyright notice "© MAKAM Market Research GmbH."
11. Technical modifications, data protection law provisions
The right to make technical modifications that lead to an improvement in the products is reserved. Deviations from an order resulting thereof neither justify non-acceptance nor withholding or other claims by the client. Data associated with business relationships (in particular names, addresses, telephone numbers and fax numbers, email addresses, ordering addresses, delivery addresses and billing addresses, order dates, ordered and delivered products or services, prices, delivery dates, payment dates and reminder dates, etc.) will be stored and further processed by the Contractor. The client shall empower and entitle the Contractor expressly to retrieve information about it, its shareholders and companies, in particular about its pecuniary circumstances, from third parties (such as for example banking institutions, creditor protection associations) and process said data automatically. The client declares its express consent that the Contractor will use the data transferred to it for its own promotional and production information purposes.
12. Place of performance, applicable law and legal venue; arbitration clause
The place of performance for delivery and payment is the head office of the Contractor. Austrian law applies with the exception of its provisions regarding the selection of the proper law and UN sales law. Insofar as nothing else is stipulated, the statutory provisions that are applicable to merchants apply. The local jurisdiction of the court with proper jurisdiction for the head office of the Contractor is deemed stipulated for any disputes.
13. Concluding provisions
The client shall disclose the location of its head office and its address to the Contractor on the occasion that an offer is made. If the client fails to communicate address or address data changes in due time, then all messages sent to the originally indicated address are deemed received when they arrive there. If the arbitration clause under Point 12. is applicable according to the most recently disclosed address, then the client may not assert that arbitration proceedings are inadmissible in reference to a different actual address. If individual provisions of these General Terms and Conditions are or become invalid or void, then the validity of the rest of the provisions shall remain unaffected by such.
