of Hundeflo GmbH as well as all providers who offer services or goods on the website https://www.derhundeflo.com/ or through other distribution channels in cooperation with Hundeflo GmbH, hereinafter referred to as ‘providers’.
Validity
Contractual bases. The Provider concludes contracts and provides services exclusively on the basis of the written offers prepared by the Provider, as well as the respective valid version of any descriptions of services included in the offer (e.g. individual documents or general folders), price lists and these General Terms and Conditions.
Unless they are merely project-specific (e.g. individual documents), the descriptions of services, price lists and general terms and conditions shall apply to all legal relationships between the Provider and the Client and shall therefore automatically form the basis of all further contracts concluded between the Provider and the respective Client in their most current version from the first conclusion of the contract, even if these price lists, product descriptions and general terms and conditions are no longer expressly referred to.
Future changes. Changes to the descriptions of services, price lists and General Terms and Conditions of the Provider shall be notified to the Client in writing and shall be deemed to have been agreed if consumers do not object within four weeks or entrepreneurs do not object within two weeks.
Once the new agreement comes into force, the changes to the General Terms and Conditions shall also apply to all other current contracts.
Zusatzvereinbarungen. Alle Formen von Zusatzvereinbarungen, sowohl vor Vertragsabschluss als auch während der Vertragslaufzeit bedürfen zu ihrer Gültigkeit der Schriftform. Das gilt bei Unternehmern auch für das Abweichen vom Schriftformerfordernis.
Contractual components on the part of the client. Even if the provider is aware of them, specifications from the client regarding the content of the service shall only become part of the contract if they are integrated into the offer by the provider or otherwise expressly accepted by the provider, for example by referring to these specifications.
Legal elements provided by the client, such as general terms and conditions or contractual clauses, shall only become effective, even if the provider is aware of them, if they are expressly accepted by the provider with an additional note including these legal texts (e.g. ‘GTC accepted’). Otherwise, the provider expressly objects to the inclusion of legal elements, such as general terms and conditions or contractual clauses, of the client.
The mere acceptance by the provider of specifications regarding the content of the client’s services therefore does not constitute acceptance of the client’s legal texts, even if these specifications contain legally formative elements (e.g. ‘Our GTC apply.’).
Procedure in the event of contradictions. In the event of contradictions between the offer, any descriptions of services (project-specific documents, general documents), any price lists and the provider’s general terms and conditions, these shall apply in the order stated. The more individualised components therefore automatically amend the more general components of the contract.
In the event of contradictions between contractual elements of the provider and contractual elements of the client, all contractual elements of the provider shall take precedence.
Procedure in the event of ineffectiveness for entrepreneurs. Should individual provisions of the contract be invalid or unenforceable, the invalid provision in contracts with entrepreneurs shall be replaced by a valid provision that comes closest to the economic sense and purpose of the invalid provision.
Conclusion of contract
Offer by the supplier. Offers from the supplier to the client, e.g. in the form of an individual offer to the client or a non-individualised offer such as an order form, catalogue or web shop, are without exception subject to change and non-binding.
Offer by the client. If the Client places an order on the basis of an offer or even unsolicited, i.e. without a prior offer from the Provider, e.g. in the case of additional orders in ongoing business relationships, the Client shall be bound to this order for a fortnight as an entrepreneur or one week as a consumer from its receipt by the Provider.
Acceptance by the provider. The contract is therefore only ever concluded upon acceptance of the order by the provider.
Acceptance must always take the form of an order confirmation, unless the provider indicates that the provider accepts the order, e.g. by taking action on the basis of the order that is evident to the customer.
A mere confirmation of receipt of the order does not constitute acceptance of the order.
Access. If electronic means of communication or an electronic order management system to which both parties have access is used to submit an offer and for acceptance, declarations made on working days, i.e. Monday to Friday, excluding Austrian public holidays, between 8:00 am and 4:00 pm shall be deemed to have been received on the same day; declarations made outside these times shall be deemed to have been received on the next working day at 8:00 am.
Information for contracts concluded with entrepreneurs. The provider’s information obligations standardised in Section 9 (1) 1-4 ECG are waived.
Scope of services, order processing and the client’s duty to co-operate
Place of fulfilment for entrepreneurs. The place of fulfilment for contracts with entrepreneurs is the registered office of the provider.
Scope of services. The scope of the services to be provided is set out in the provider’s written description of services resulting from all parts of the contract.
Information from other sources not included in the offer (e.g. presentation documents, websites or catalogues) is not part of the service description.
The client is obliged to check the service description for compliance with its requirements. After the order has been placed, changes to the service description are only possible by mutual agreement and may in particular lead to changes in prices, deadlines and dates.
Professional performance. Unless otherwise stipulated in the written service description, the bidder shall be responsible for professional execution in accordance with the time of submission of the offer. Within the scope of the written service description, the provider has freedom of design in the execution of the services, insofar as there are several professional options for execution.
Interchangeable services for contractors. Insofar as this is consistent with the objectives of the order, the provider is authorised to deviate from the service description in contracts with contractors and to replace services with other equivalent services.
Third-party services. The Provider is authorised to perform the services itself or to use expert third parties to perform the services (external services).
Agreed third-party services. If, as agreed, the services provided by the provider are based on specifically defined services, components or rights of third parties, then these services, components or rights constitute an agreed third-party service.
In this case, the contractual obligation of the provider consists exclusively in the professional commissioning, coordination and processing, but not in the professional execution of the agreed third-party services.
Divisible services. In the case of divisible services, the provider is authorised to make partial deliveries.
Dates and deadlines. Dates or deadlines specified by the supplier are non-binding unless they are expressly labelled as binding. This does not apply to delivery dates and deadlines stated in the webshop for contracts with consumers.
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events – in particular default by the customer in the fulfilment of its obligations as well as unforeseeable and unavoidable delays for the supplier at the supplier or the supplier’s contractors – shall extend deadlines or postpone dates by the duration of the unforeseeable and unavoidable event plus the duration of the organisational measures necessary in such a case. The provider must inform the client of this in writing.
Client’s duty to co-operate. The Client shall provide the Provider with all information in writing without delay, without being requested to do so and in a form that can be further processed, and shall provide all services that are necessary for the Provider to provide the services.
This includes in particular the provision of a contact person for contract processing, the provision of documents, materials and equipment as well as the coordination of order details.
If the need for the provision of information or services by the Client only becomes known during the provision of the services by the Provider, the Client must provide these without delay.
The client must check the information and services provided by him for their suitability, correctness and legality.
The Client shall be liable for all damages caused by defective, delayed or omitted co-operation on the part of the Client, and in particular for any additional expenses incurred by the Provider as a result. If the Provider is unable to perform the services as agreed due to defective, delayed or omitted cooperation on the part of the Client, the Provider shall also be entitled, without prejudice to other rights, to interrupt the performance of the service, to postpone other services for other clients and to continue the performance of the services for the Client only after completion of these services, provided that the Client has fulfilled its obligations to cooperate by then, whereby all dates and deadlines shall be postponed.
If claims are asserted against the provider by third parties due to an infringement of rights in connection with information or services provided by the client, the client shall also indemnify and hold the provider harmless and support the provider in the defence against any third-party claims.
Rights to the services. In principle, all rights to the agreed services belong to the provider or the provider’s licensors. The client shall receive the right to use the services after full payment of the agreed fee to the extent agreed with the provider or predefined by the licensors.
In the event that the scope of the licence has not been agreed, this shall include non-exclusive use for the Client’s own use within the Client’s company, which does not include the right to sub-license or pass on to third parties (or affiliated companies), whereby the right to edit is restricted to the minimum required by law.
The client is aware that the services of the provider are often based on works or services of third parties with different licence conditions. The client must comply with these licence conditions of services or works of third parties which are part of the services or works of the provider.
Reference. In the case of contracts with entrepreneurs, the Provider is authorised to refer to the Provider and, if applicable, to another author on all services created by the Provider for the Client and, subject to written revocation possible at any time, to use data such as the name and logo of the Client, project description, project illustrations and similar as a reference or as a reference to the business relationship with the Client within the framework of the Provider’s own advertising material, without the Client being entitled to any remuneration for this.
Special types of benefits.
Booking training sessions. Training units can be booked either as individual lessons or as a module in a block of 10. It is possible to purchase a module up to the third training unit; otherwise individual lessons will be invoiced.
Validity of the module. A module is valid for 12 months from the first lesson.
Cancellation of appointments. If a training session cannot be attended by the client, it must be cancelled at least 24 hours in advance. Otherwise the respective training session will be invoiced. The statutory right of cancellation of consumers remains unaffected by this.
Loyalty obligations & non-solicitation
Duties of loyalty. The contracting parties are obliged to promote the reputation of the other contracting party and, in particular, not to criticise the other contracting party vis-à-vis third parties. This obligation shall apply perpetually beyond the end of the contract.
Non-solicitation. The Client undertakes not to entice employees or suppliers away from the Provider. This obligation shall apply for three years after the end of the contract. In the event of a breach of these obligations, the Client shall pay a contractual penalty in the amount of the gross annual salary of the enticed-away employee or the gross annual turnover of the enticed-away supplier.
Remuneration
Prices. All prices are quoted from the registered office or place of business of the provider in euros plus VAT for contracts with entrepreneurs, and including VAT at the statutory rate for contracts with consumers.
Billing according to flat rate. In the case of invoicing in the form of a lump sum, this covers all services that are necessary to fulfil the agreed services. Excluded are the costs of unforeseeable events, additional costs due to non-contractual co-operation by the client and additional costs due to hidden defects in services provided.
Billing according to hourly rates. In the case of invoicing according to hourly rates, invoicing shall be based on actual expenditure. Billing according to hourly rates shall be deemed to exist if the anticipated expenditure is stated as approximate, probable or estimated.
Additional services. All services provided by the provider that are not expressly covered by the agreed fee, in particular additional services agreed at a later date, shall be remunerated separately.
Billing method. The agreed fee shall be paid in advance. The service shall only be provided after full payment has been made.
Partial services. In addition, the provider is authorised to charge for partial services. In any case, the individual items in the service description shall be deemed to be partial services.
Advance on costs. In addition, the Provider shall be entitled to demand advance payments in advance to cover its own expenses in the full amount of the next partial services to be rendered in the case of new customers, in the case of the invoicing of agreed third-party services and in the case of the appearance of economic problems, in the case of a delay in payment in the past and in the case of the appearance of the Client’s unwillingness to pay.
Unjustified cancellation in the case of entrepreneurs. In the event that the Client as an entrepreneur cancels the order in whole or in part without gross negligence or wilful misconduct on the part of the Provider, the Provider shall nevertheless be entitled to the agreed fee. In this case, the provider shall only have to take into account savings from additional purchases not yet made. The same applies if the provider cancels the contract for an important reason within the sphere of the client.
Payment
Due date The provider’s invoices are due without any deductions from the invoice date.
Payability. The provider’s invoices are payable within 7 days of receipt of the invoice.
Payability for online transactions. In the case of online transactions, the invoices are to be paid by the supplier when the order is placed.
Bank transfer. In principle, payment must be made by bank transfer to the bank account.
Other payment methods. The Client is also authorised to use all other means of payment offered by the Provider. The amount shall be debited at the time of payment by the Client.
Agreed third-party services. The Provider is authorised to commission the third-party service in its own name or in the name of the Client as well as for its own account or for the account of the Client.
If the provider concludes the contract in its own name and/or for its own account, this is done exclusively in the interest of the client for the purpose of simplified contract and payment processing.
Retention of title. Until full payment has been made by the Client, a reservation of title in favour of the Supplier shall be deemed to have been agreed for the goods delivered by the Supplier until full payment of the purchase price and all associated interest and costs. In the event of default, the supplier shall be entitled to assert rights arising from the retention of title. In this case, the customer agrees to the collection of the goods by the supplier. The assertion of the retention of title by the supplier does not constitute a cancellation of the contract, unless the supplier expressly declares the cancellation of the contract.
In the event of resale of the goods by the customer, the customer shall assign his claim against the buyer to the supplier for the purpose of security. The supplier is authorised to inform the purchaser of this assignment.
Prohibition of offsetting and retention. The Customer shall not be entitled to offset its own claims against claims of the Supplier, even in the case of related claims, unless the Customer’s claim has been recognised in writing by the Supplier or has been established by a court. A right of retention in favour of the Client is excluded.
Payment by instalments. Insofar as the Provider and the Client conclude an instalment payment agreement, the loss of a deadline shall be deemed to have been agreed in the event that even one instalment is not paid on time.
Default of payment. In the event of late payment, the statutory interest applicable between entrepreneurs, but at least 9% per annum, shall be payable in the case of contracts with entrepreneurs, and interest in the amount of 9% per annum in the case of contracts with consumers. The client shall bear all costs and expenses associated with the collection of the claim, such as in particular collection charges or other costs necessary for appropriate legal action.
Continued default of payment. Following an unsuccessful reminder from the Client, setting a grace period of at least 7 days, the Provider shall be entitled to immediately invoice and declare due all services and partial services already provided, including those provided under other contracts concluded with the Client, and to temporarily suspend the provision of unpaid services until all outstanding fees have been paid in full.
Following a further unsuccessful reminder sent directly to the client’s management and the setting of a grace period of at least 7 days, the provider shall be entitled to withdraw from all contracts and demand compensation for lost profits. This also entitles the Provider not to perform or to discontinue services that have already been paid for.
Irrespective of these options, the provider can of course also file a lawsuit in court immediately after the due date has expired.
Liability
Classic contract for work. In the case of a classic contract for work and labour, the provider is liable for the achievement of the objective.
Interventions by the client. If the client interferes with the provider’s services without authorisation in a manner not agreed or makes undocumented changes or changes that are no longer easily traceable for the provider, the client shall be liable for the additional expenses incurred by the provider as a result, e.g. for completion, inspection, documentation, identification of defects, classification of defects, rectification of defects.
Transfer of risk for entrepreneurs. When goods are dispatched, the risk is always transferred to the customer as soon as the supplier has handed over the goods to the transport company. The dispatch of goods is generally not insured, unless the customer has commissioned the supplier to insure the goods at his own expense.
Obligation to give notice of defects for entrepreneurs. After requesting an interim acceptance by the Provider, after handover and after commencement of live operation, the Client must accept (‘approve’) the services handed over or to be accepted in writing within 8 days at the latest or report any defects or damage in writing.
In the event of an interim acceptance, further work can only be carried out by the provider after the interim acceptance / ‘release’ has taken place. If acceptance or complaint is not made in good time, the services shall automatically be deemed to have been accepted by the Client.
Hidden defects or damage that only occur after the expiry of 8 days, but within open guarantee, warranty or compensation periods, must also be reported by the client within 8 days of being recognised.
The obligation to give notice of defects shall apply to all defects or damage which the client should have recognised with the due care of a prudent contractor in the course of an appropriate inspection. Due to the particular importance of interim acceptances for the avoidance of defects, which then affect all further performance steps, the inspection must correspond to a final, detailed and particularly careful inspection. At handover, the inspection must correspond to an initial but nevertheless precise inspection. At the start of live operation, the inspection must again correspond to a final, detailed and particularly careful inspection due to the particular importance of the start of live operation to prevent damage during operation.
The client’s complaint must describe the defect or damage in detail and in a comprehensible manner. In the case of defects or damage that do not occur continuously, the exact times and framework conditions of the occurrence of the defects or damage must be stated. The client must enable the provider to take all measures necessary to investigate and rectify the defects or damage. If the Client fails to give notice of defects in good time, the assertion of guarantee, warranty and compensation claims as well as claims based on other liability regulations, in particular recourse claims, by the Client shall be excluded.
Warranty. The statutory provisions of warranty law apply to consumers. In addition, any additional guarantees or customer services provided in the product description shall apply to consumers.
The right to warranty and the right to warranty recourse are limited to six months from delivery for entrepreneurs. In the case of used goods, the right to warranty is completely excluded for entrepreneurs.
Deviations from the state of the art shall under no circumstances entitle the client to a claim if the work is sufficiently functional.
As an entrepreneur, the client has the right to improvement or replacement or, in the case of minor defects, to a price reduction or, in the case of major defects, to cancellation of the contract at the discretion of the supplier. The rectification of the defect shall not extend the warranty period for companies, nor shall it begin to run anew for the part of the service affected by the rectification of the defect.
Error, reduction by more than half in the case of entrepreneurs. The right to rescission due to error and due to reduction by more than half is excluded for contracts with entrepreneurs.
Damages and other claims. Claims for damages and claims based on other liability regulations, in particular recourse claims, on the part of the client are excluded unless they are based on gross negligence or intent in the case of contracts with entrepreneurs or gross negligence or intent on the part of the provider in the case of contracts with consumers.
Such claims by entrepreneurs expire six months after knowledge of the damage and the damaging party; in any case, however, after three years from the act of infringement.
Excluded from this exclusion of liability are claims based on personal injury and other non-dispositive liability provisions.
Protective effect in favour of third parties. It is expressly agreed that this contract has no protective effect in favour of third parties.
Liability for agreed third-party services. In the case of contracts with entrepreneurs, those third parties who provide the agreed third-party services are not vicarious agents of the provider, are not involved in the pursuit of the provider’s interests and are therefore not included in the provider’s sphere of risk.
For the agreed external services themselves, but not for the professional commissioning, coordination and processing of the same, any fault-based liability of the provider in contracts with entrepreneurs is therefore additionally reduced to fault in the selection and any strict liability of the provider is excluded.
If, in the case of contracts with entrepreneurs, the external services are used on the instructions of the client, i.e. selected by the client, then any liability of the provider is excluded.
Liability for free services. Insofar as the provider provides services or parts of services free of charge, any liability for these parts of services is excluded for contracts with entrepreneurs.
Burden of proof for entrepreneurs. A reversal of the burden of proof to the detriment of the provider is excluded. In particular, the existence of the defect at the time of handover, the time of discovery of the defect, the timeliness of the notice of defect and the existence and degree of fault must be proven by the client.
Period of grace for entrepreneurs. In the event of non-fulfilment of the contract in accordance with the agreement, the client shall only be entitled to assert claims if it has granted the provider a reasonable grace period of at least fourteen days in writing. This also applies to the cancellation of the contract for good cause.
Contract cancellation for entrepreneurs. Cancellation of the contract by the client must be declared in writing by registered letter.
Final provisions
Applicable law. All legal relationships and matters between the Client and the Provider shall be governed exclusively by Austrian law, excluding the international conflict of law rules.
Mandatory consumer law. If, in the case of contracts with consumers, the professional or commercial activity of the Provider is orientated towards the consumer’s home country, the protection offered to the consumer by the mandatory legal provisions of the country of residence shall remain unaffected by the agreed applicable law.
UN Convention on Contracts for the International Sale of Goods. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply to contracts with entrepreneurs.
Place of jurisdiction. The competent Austrian court for 5202 Neumarkt am Wallersee is agreed as the place of jurisdiction for all disputes between the supplier and the company. However, the Provider shall also be entitled to take legal action at the general place of jurisdiction of the Provider and the Company.