Terms and Conditions of ebets GmbH

1. validity

1.1. All legal relationships between ebets GmbH, Schildorf 16, 4720 Kallham and its contractual partners, provided that they are entrepreneurs, are subject exclusively to these General Terms and Conditions. These also apply to all future business relationships, even if no express reference is made to them.

1.2 Any subsidiary agreements, reservations, changes or additions to these General Terms and Conditions must be in writing to be valid; this also applies to any deviation from the written form requirement.

1.3. Conditions of the contractual partner that conflict with or deviate from these terms and conditions will only become effective if they are expressly accepted by us in writing, even if we are aware of them.

1.4. Should individual provisions of these General Terms and Conditions be invalid or not included in the contract for whatever reason, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and purpose.

2. Conclusion of contract

2.1 Our offers are subject to change.

2.2. A contract is only concluded upon written (email, fax, post) order confirmation from us.

3. Scope of services, required characteristics, order processing and customer’s duty to cooperate

3.1. If we send templates (in particular samples, patterns, models, illustrations, preliminary drafts, sketches, final artwork, brush prints, blueprints and color prints), these must be checked by the customer. If the customer does not object within three days, the templates are deemed to have been approved.

3.2. A faithful representation of the final services as a template is not possible for technical reasons. Templates are therefore only valid in accordance with this point as assurances regarding the design, quality, properties, suitability for a specific use etc. of the service owed by the dealer, the dealer therefore makes no assurances with regard to and in particular does not provide any guarantee for

• the exact placement and size of labels on products;
• an exact colour match between templates and finished services, in particular a colour difference of up to ΔE 3,0, ΔE 4,5 if the templates were only approved in electronic form, is not considered a defect;
• the technical characteristics, insofar as the average use to be expected given the nature of the service is not significantly impaired by deviations;
• a specific material or material quality, as long as the end product is approximately comparable to the original.

If the final performance deviates from the template with regard to one or more of these characteristics, this deviation is deemed to have been agreed and does not constitute a defect.

3.3. For deliveries, deviations of up to +/-10% of the number of pieces are deemed to be agreed, without excess or short deliveries constituting a defect or a breach of contract. However, the purchase price depends on the number of pieces actually delivered.

3.4. The customer is obliged to cooperate as far as necessary, in particular to provide all documents, templates and samples required for the provision of the service. We must be informed immediately of all circumstances that are important for the fulfilment of the order, even if these circumstances only become known during the execution of the order. Any expenditure that arises due to incorrect, incomplete or subsequently changed information (additional costs, delays, etc.) must be reimbursed by the customer.

3.5. The customer is particularly obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any existing copyright, trademark rights or other rights of third parties. We are not liable for any infringement of such rights. If we are held liable for such an infringement, the customer agrees to fully indemnify us and hold us harmless.

3.6. However, we are not obliged to check the documents, data and information provided by the customer for completeness, accuracy or whether they are suitable for the intended purpose alone or in connection with services commissioned by the customer, whether they infringe the rights of third parties or violate legal provisions (e.g. law against unfair competition, product safety law, trademark protection law, etc.).
3.7. Unless otherwise agreed, we are not obliged to store data and other documents (screens, films, etc.) created or generated in the course of an order/project beyond the time of delivery of our service or to otherwise keep them available to the customer.

3.8. In case of doubt, our services are divisible.

4. Finishing of customer items

4.1 If items are handed over to us for processing (“finishing”), we are entitled to carry out this processing ourselves or to employ the services of third parties.

4.2. We shall be liable to the customer for damages caused by such third parties only to the extent of our own claims for compensation against the third parties.

4.3. Shipping to and from such third parties is generally uninsured, either by post, freight forwarding company, rail or courier service, which the parties agree to be the usual shipping method. If the customer does not make any special specifications regarding the transport company, the type of shipping or the conclusion of transport insurance, the transport by one of these shipping methods is deemed to be approved by the customer and is in any case carried out at the customer's expense and risk.

4.4. Sections 44 to 49 of the General Austrian Freight Forwarders' Terms and Conditions (AÖSp) apply to the storage of the customer's items, but our liability for damages is also limited to intent and gross negligence. According to Section 50 of the AÖSp, we acquire a lien and retention right on all assets stored by the customer or other assets of the customer that are under our control.

4.5. We are only liable for damage to valuables handed over by the customer, i.e. items with a value of more than €250,00, if the customer has expressly informed us of their value and we are at fault for the damage in the sense of intent or gross negligence. If the value of these items has not been explained, we are not liable.

5. Prices / Cost estimates

5.1. The prices are based on the costs at the time of the initial price offer. If the costs increase at the time of delivery or service, we are entitled to adjust the prices accordingly. In case of doubt, the prices offered are unit prices. The statutory sales tax as well as taxes and fees (e.g. ARA, ERA, ...) will be charged additionally.

5.2. Our cost estimates are generally non-binding unless binding is expressly promised.

5.3. All services that are not expressly covered by the agreed fee will be invoiced separately. Expenses/cash expenses (e.g. for travel, accommodation, model or sample production, etc.) are to be paid for separately. Unless otherwise agreed, the creation of templates is not included in the price and will be charged at € 60,00 per working hour (excluding material costs).

5.4. The remuneration is due in full even if the performance of the contract is not carried out for reasons that are beyond our control.

5.5. To the extent that we are subject to the duties of a contractor, the offsetting provisions of Section 1168 Paragraph 1, 2nd half-sentence of the Austrian Civil Code (ABGB) as well as the risk-bearing rule of Section 1168a, 1st sentence of the Austrian Civil Code (ABGB) are waived.

5.6. If fees, taxes, customs duties or other charges are levied in connection with the delivery, these shall be borne by the customer, unless otherwise agreed, as well as transport and delivery costs.

6. Deadlines / Delays

6.1. Deadlines and dates must be recorded or confirmed in writing. Deadlines generally apply to the dispatch (see point 7.4.) of services, not to their delivery to the customer.

6.2 Unless otherwise agreed, dispatch by us or third parties in Germany or abroad, which we use to fulfil the contract, will take place within 6 months of order confirmation, but if a print release or approval from the customer is required, from the time of its issuance.

6.3. Any claims due to delay in delivery can only be asserted by the customer after setting a grace period of at least 14 days in writing, which begins at the earliest with the receipt of a reminder letter to us.

6.4. If the grace period expires without result, the customer may withdraw from the contract. An obligation to pay compensation for damages arising from the delay only exists in the event of intent or gross negligence on our part. We are not obliged to pay interest on arrears.

6.5. Production and delivery obstacles for which we are not responsible (including those involving third parties at home or abroad whom we use to fulfil the contract), such as force majeure, strikes, operational or delivery disruptions, reductions and loss of working hours, transport difficulties and official interventions, result in an appropriate extension of the delivery periods and dates. The same applies if the customer is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information) or if other circumstances within the customer's sphere of influence prevent the deadlines from being met. In this case, the agreed date will be postponed at least to the extent of the delay, without prejudice to any right of withdrawal on our part in accordance with point 10.

7. Delivery / Transport / Collection

7.1. If the customer does not collect the goods themselves during our business hours, deliveries will be made ex works in Kallham or a third party in Germany or abroad that we use to carry out our services, at the risk and - unless otherwise agreed - at the expense of the customer (sale by dispatch). The risk also passes to the customer if we provide additional services (e.g. assembly).

7.2. If shipping at our expense was agreed, we will only bear the transport costs that accrue in accordance with Section 33 of the AÖSp up to the point at which the transport company makes the goods available for acceptance in or on the means of transport (e.g. truck, swap body, etc.) to the recipient or, if possible, on their property. The removal of goods to yards, ramps, rooms, shelves and the like is always at the customer's expense.

7.3. As a rule, shipment is carried out either by post, freight forwarding company, rail or courier service, which the parties agree are the usual shipping methods. If the customer does not make any special specifications regarding the transport company or the type of shipment, transport by one of these shipping methods is deemed to be approved by the customer.

7.4 Unless expressly agreed otherwise, all deadlines and dates apply exclusively until the dispatch of services ex works (i.e. handover to the transport company) and we are not obliged to provide our services as fixed-date transactions.

7.5 In any case, there is no obligation to use the cheapest method of transport.

7.6. Part deliveries are permitted.

7.7 Unless the customer has already expressly requested transport insurance at his own expense in the order or otherwise in writing within 3 days of order confirmation, the shipment will be uninsured and at the customer's risk.

7.8. If the service is ready for dispatch but dispatch is delayed for reasons beyond our control, the risk passes to the customer when the service is ready for dispatch and we are entitled to charge the customer 1% of the invoice amount for each week of delay or any additional costs (interest, storage costs, etc.). If self-collection has been agreed, this also applies if the customer does not collect the service within three days of receiving a request to collect it or notification that it is ready for collection.

8. terms of payment

8.1 Our invoices are due net cash without any deductions from the invoice date and, unless otherwise agreed, are to be paid within ten calendar days of receipt of the invoice.

8.2. Billing is based on the number of items actually delivered. However, payment is still due in full (in the amount of the agreed – or at most average – number of items) if the contract is not fulfilled in whole or in part for reasons that are beyond our control.

8.3 We are entitled, at our own discretion, to make partial invoices and to request advance payments.

8.4. Payments can only be made to our account specified in the invoice in order to discharge the debt. Incoming payments are first credited to costs, then to interest and finally to the capital.

8.5 Bills of exchange and cheques will only be accepted on the basis of an express agreement, without obligation to present or protest and only as payment.

8.6. In the event of even purely objective default in payment, the customer must pay default interest of 8% above the respective base interest rate of the European Central Bank, but at least 1% per month. Any discounts, rebates or other benefits granted shall be deemed not to have been granted in the event of late payment or in the event of insolvency proceedings being opened against the customer. In the event of even purely objective default, the customer undertakes to bear all costs and expenses associated with the collection of the claim, such as in particular collection fees or other costs necessary for appropriate legal action.

8.7. The customer is not entitled to offset his own claims against our claims if these have not been acknowledged by us in writing or established by a court. The customer is not entitled to a right of retention.

8.8. If insolvency proceedings are opened against the customer, bankruptcy is not opened against the customer's assets due to a lack of assets to cover costs, enforcement proceedings are initiated against the customer, the customer's financial situation deteriorates, credit reports on the customer are not entirely unobjectionable or the customer is in default of payment, we are entitled to demand immediate payment of all services and partial services provided, including those under other contracts concluded with the customer. Furthermore, in each of these cases we are entitled to make further deliveries already confirmed by the customer dependent on advance payment or security, even if such security has not been agreed.

9.  Retention of title

9.1 We reserve the right of ownership to all physical items delivered until full payment has been made.

9.2. We are entitled to withdraw from the contract and to collect the reserved goods after prior notice if the customer is in mere objective default in fulfilling his obligations or if circumstances arise which endanger our claims.

9.3. In the event of the resale of the reserved goods, it is agreed that the customer's purchase price claim against third parties is simultaneously assigned to us to secure our contractual claims against the customer.

10. Withdrawal from the contract / cancellation

10.1. We are particularly entitled to withdraw from the contract if (i) the customer breaches a contractual obligation that is not merely insignificant and does not remedy this breach despite a reminder and the setting of a reasonable grace period, whereby repeated breaches of even merely insignificant contractual obligations are to be regarded as a material breach of contract, (ii) the service cannot be provided for reasons for which we are not responsible, (iii) the customer's financial situation deteriorates significantly, (iv) insolvency proceedings are opened against the customer or are not opened due to a lack of assets to cover costs, or (v) an event of force majeure occurs which prevents us from providing the service.

10.2. The customer is entitled to withdraw from the contract if we grossly breach an essential obligation. However, if we can restore the contractual situation or take action, the customer must grant a period of at least 14 days to do so. This period begins at the earliest with the receipt of a reminder letter in which the customer states the breach of contract and expressly threatens to withdraw from the contract.

10.3. In the event of unjustified withdrawal from the contract or cancellation of services, the customer must reimburse us for all expenses already incurred and the costs incurred thereby, amounting to at least 9% of the agreed fee, but at least € 50,00. At our discretion, however, we are also entitled to demand the agreed fee instead in accordance with Section 1168 Paragraph 1, 1st half-sentence ABGB.

11. Industrial property rights / data protection

11.1. Unless otherwise agreed in writing, we grant the customer a non-exclusive right of use (authorization to use the work) for the duration of the contractual relationship to all services, work results and creations related to the respective order, especially to works within the meaning of the Copyright Act, such as in particular to all texts, graphics, images, layouts, ideas, concepts, plans, sketches, advertising materials, films, drafts, designs, trademarks, etc. The material and spatial scope of this right of use is based on the purpose of the individual order or the individual measure.

11.2. If we make use of third-party services, we will ensure that appropriate agreements are concluded with those third parties to ensure that we receive the rights to use these services in accordance with this contract clause.

11.3. Changes to services, work results and creations, especially to works within the meaning of copyright law, are only permitted with our consent or that of the author.

11.4. The acquisition of any usage and exploitation rights by the customer only takes place after full payment of all outstanding invoices. Until this point, the customer is only entitled to use the service if he or she revokes this at any time. In the event of late payment, we are entitled to demand that any use of the services provided be stopped.

11.5. The customer grants us the right to use and process all data collected and/or transmitted in the course of the business relationship, in particular for the purpose of creating benchmarks. Reference is made to point 3.5.

11.6. Subject to the customer's written revocation at any time, we are entitled to refer to the existing business relationship with the customer on our own advertising media and in particular on our website using the name and company logo.

12. Templates and samples / confidentiality / contractual penalty

12.1. If we do not receive an order after creating templates/samples or if the customer or we withdraw from the contract, all of our services, in particular the templates/samples and their contents, remain our property; the customer is not entitled to continue using them in any form whatsoever; the templates/samples must instead be returned immediately. The passing on of templates/samples to third parties as well as their publication, reproduction, distribution or other use is not permitted without our express consent.

12.2 The customer is also prohibited from further using the ideas and concepts included in templates, regardless of whether the ideas and concepts are protected by copyright.

12.3. If the customer breaches the obligations under this point 12, he is obliged to pay a contractual penalty of € 3.000,00 regardless of fault. Such a breach of contract is deemed to be proven if we present services, works or other creations of third parties or the customer in which these ideas, concepts or templates were used, or make their existence credible; in such a case, the customer must prove that he has not breached the contract. We reserve the right to assert claims for damages that exceed the contractual penalty.

13. Labelling / Advertising / Exclusivity

13.1 We are entitled to refer to our company and, if applicable, to the author on all advertising materials and in all advertising measures without the customer being entitled to any compensation for this.

13.2. We are entitled to use images, sketches, descriptions, models, labels and other details of the services provided to customers for advertising purposes; for example, to include illustrations in our advertising materials, offers or website.

13.3. Unless expressly agreed otherwise, customers only receive a non-exclusive right to use intellectual property rights related to our services and therefore have no right to exclusive purchase of our services.

14. Warranty / Duty to inspect / Challenge

14.1. Regardless of the information provided to us by the customer in accordance with point 3.4, we do not guarantee any particular quality, usability or exploitability of our services.

14.2. Clause 3.1 applies to the stipulated or usually assumed characteristics of the services, in particular based on templates within the meaning of clause 3.2.

14.3. The warranty due to unsuitability of the dealer’s services for a specific use is expressly excluded.

14.4. The customer is obliged to check the dealer's performance immediately and thoroughly and to complain about any defects in writing immediately, but no later than within 3 working days of delivery, specifying the defects precisely and enclosing suitable proof of the defect, otherwise he will lose all claims arising from a defect (warranty, challenge based on error, compensation, etc.).

14.5. The avoidance of contracts due to reduction of more than half is expressly excluded.

14.6. The reversal of the burden of proof pursuant to Section 924 ABGB to our detriment is excluded. The existence of the defect at the time of delivery, the time at which the defect was discovered and the timeliness of the complaint must be proven by the customer.

14.7. The warranty period is 6 months and begins when the customer takes delivery of the goods (collection by the customer or from the transport company) or when the customer fails to accept the goods. The warranty period ends prematurely if the customer or third parties make changes to the goods or use, store or otherwise handle them improperly.

14.8. The customer is not entitled to withhold payments due to minor defects or to withhold payments relating to one part of the goods because another part of the goods has significant defects.

14.9. Any warranty claims are suspended as long as the customer is in default of payment; however, this suspension does not prevent the start, running and expiry of the warranty period.

14.10. In the case of justified and timely complaints, the customer is only entitled to improvement or replacement of the service at our discretion.

14.11. If the complaint is justified, the defects complained of will be remedied within a reasonable period of time, which is at least 14 days. Any repairs will be carried out either in our factory or at the customer's premises, at our discretion. If the defect is remedied by repairs in our factory or by replacement, the defective goods must be packaged properly and shipped at the customer's risk and at our expense.

14.12. Improvement or replacement does not extend or renew the warranty period.

14.13. We are entitled to refuse to improve or replace the service if this is impossible or would involve disproportionate expenditure for us. In this case, the customer can claim a price reduction.

14.14. The customer is obliged to support us in identifying and correcting defects and to facilitate all necessary measures (such as access, inspection of documents, etc.). If the customer does not comply with his obligation to cooperate in correcting defects, the assertion of any claims resulting from defective performance is excluded.

14.15. If, during the inspection of the defects complained of, it turns out that these do not exist or are not covered by our warranty obligation, we are entitled to return the services to the customer at the customer's risk and expense and to invoice the customer for the costs incurred due to the unjustified complaint.

15. Damages

15.1. We will fulfil the obligations assigned to us in compliance with generally accepted legal principles and will inform the customer in good time of any risks we are aware of. However, we do not have knowledge of any particular type of use of our services by the customer, which is why we are not obliged to check or inform the customer about the suitability or safety of their services for certain types of use.

15.2. Any liability for claims made against the customer on the basis of the advertising material, the use of a trademark or any other service provided by us is expressly excluded if we have complied with our duty to inform or if we could not and should not have recognized such risks.

15.3. In general, we are only liable for damages within the framework of the statutory provisions if we can be proven to have acted intentionally or with gross negligence. Liability for slight and simply gross negligence is excluded. The injured party must prove that gross negligence or intent was present; the reversal of the burden of proof in accordance with Section 1298 ABGB is expressly waived.

15.4. Compensation for consequential damages, mere financial losses, lost profits and damages to third parties is excluded in all cases; damages are to be calculated exclusively in an objective and abstract manner.

15.5. Claims for compensation for damages must be asserted in court within six months of knowledge of the damage and the person responsible, but no later than one year after receipt, otherwise they will be excluded. If the customer defaults on receipt, the period begins with the agreed handover; if no such handover was agreed, the period begins at the time at which we are first ready to provide the service. Any liability is excluded for damages asserted after this period has expired or which only arise after this period has expired.

15.6. Claims for damages are limited to the amount agreed for the specific service, excluding taxes, provided that there is liability insurance with the corresponding sum insured.

15.7. If third parties assert claims against us due to the use of our services by the customer (e.g. passing them on), the customer must indemnify and hold us harmless.

16. Notices

The customer agrees to the transmission of data and information by email until revoked in writing. We transmit data to the customer in standardized formats (Word, PDF).

17. Applicable law

The legal relationships between us and our customers are governed exclusively by Austrian law, excluding the conflict of law provisions. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.

18. Fulfillment and jurisdiction

18.1. The place of performance is our registered office.

18.2. The place of jurisdiction for all disputes arising directly between us and our customers shall be the court with local and subject-matter jurisdiction for Kallham.