General Terms & Conditions of BoYaSTAR GmbH

(Version of 1st January 2018)

1. General; field of application
1.1 The following General Terms and Conditions govern the mutual relationships between client and BoYaSTAR GmbH, Zollgasse 15, 6850 Dornbirn, Austria, registered in the commercial register of the Feldkirch (Austria) Regional Court under CNR 324123 b (hereinafter referred to as “BoYaSTAR”). Any special terms and conditions of BoYaSTAR are unaffected by these General Terms and Conditions.
1.2 The General Terms and Conditions apply exclusively in respect of all services provided by BoYaSTAR. The valid version on the date of the conclusion of any contract is authoritative.
1.3 The General Terms and Conditions of BoYaSTAR, which have been demonstrably brought to the knowledge of the client, also apply in respect of all future transactions between the contracting partners, i.e. even where these General Terms and Conditions have not been expressly designated as a constituent part of the contract in the individual case.
1.4 Any deviating, opposing or supplementary general terms and conditions of the client do not form part of the contract, even if the contracting partners have knowledge of any such, unless the applicability thereof has been expressly agreed by BoYaSTAR in writing.
   
2. Cost estimate; conclusion of contract
2.1 Cost estimates of BoYaSTAR are subject to change and are not binding. A guarantee of accuracy is expressly not given. Any cost estimate which is, by way of an exception, designated as binding does not represent a binding offer to conclude a contract. BoYaSTAR will abide by the conditions of any cost estimate that is designated as binding for 30 (thirty) days from the date stated on the cost estimate.
2.2 The scope of service to be provided in the performance of any specific mandate is contractually agreed in the individual case. The contract must be in writing. If the contract is not concluded in a standard document signed by the parties, the contract is concluded by means of the client’s written offer (issue of mandate) and confirmation by BoYaSTAR of the mandate, constituting acceptance of the corresponding offer.
2.3 If the content of the mandate confirmation deviates from the content of the cost estimate, the content of the mandate confirmation represents the authoritative basis of the contract and, provided that the client is not a consumer within the meaning of the Austrian Consumer Protection Act (hereinafter referred to as “KSchG”), constitutes a new cost estimate.
   
3. Performance of the contract
3.1 The place of performance for the contractual service is the registered office of BoYaSTAR at Zollgasse 15, 6850 Dornbirn, Austria, unless the contracting partners expressly agree otherwise.
3.2 The completion date for any contractual service is only binding if expressly confirmed as such in writing by BoYaSTAR in that individual case.
3.3 BoYaSTAR is not liable if it is unable to meet an agreed completion date in consequence of force majeure, or because of defective or untimely completion of a contractual service by instructed third parties, or other events which cannot be prevented by BoYaSTAR (e.g. strike). However, BoYaSTAR must inform the client thereof immediately. In this case BoYaSTAR is entitled to withdraw from the contract; such withdrawal must be notified by registered mail. The client is also entitled to rescind the contract, although this right can only be exercised after a thirty-day extension has been granted. In either termination case, BoYaSTAR is only obliged to repay any down payments it has received, without interest.
3.4 Should any additional or altered services be necessary for the successful performance of the agreed service, BoYaSTAR may perform these without obtaining the consent of the client and charge these to the client where the volume of the additional or altered services does not exceed 10 (ten) per cent of the remuneration stipulated in the cost estimate underlying the contract. If cost increases of more than 10 (ten) per cent arise after the mandate has been issued, BoYaSTAR must notify the client immediately.
3.5 Unless agreed otherwise, altered or additional orders may be billed at appropriate prices.
   
4. Delegation of duties
4.1 BoYaSTAR may have the services for which it is contractually responsible provided by qualified third parties, either wholly or in part, unless otherwise agreed in advance. The remuneration of the third parties for the services provided is undertaken exclusively by BoYaSTAR. No direct contractual relationship of any kind whatsoever arises between the client and any third party.
4.2 Where the client is not a consumer within the meaning of KSchG, it undertakes for the duration of the contractual relationship and for 1 (one) year thereafter not to enter into a business relationship of any kind with any person or business that BoYaSTAR uses in the performance of the contract. In particular, the client must not engage such persons or businesses to perform similar services to those offered by BoYaSTAR.
   
5. Reporting; reporting obligation
5.1 BoYaSTAR undertakes to the client that it will report to the client concerning its activity, and the activity of instructed third parties, commensurately with the progress of the work.
5.2 Where it has been contractually agreed that a final report is to be provided, this must be received by the client within 30 (thirty) days of the end of the contract.
5.3 BoYaSTAR is not bound by any instructions in the provision of the agreed contractual service and acts according to its own best judgement and under its own responsibility. It is not bound to any specific place of work or any specific working hours.
   
6. Remuneration; payment procedures
6.1 Following the completion of the agreed service or the work, BoYaSTAR will receive remuneration in accordance with the agreement between the contracting partners. BoYaSTAR is entitled to submit interim statements of account commensurate with the progress of the work, and to demand payments on account in accordance with the progress made. Following presentation of an invoice by BoYaSTAR in accordance with the Austrian Value Added Tax Act (UStG), payment by the client is due within 10 (ten) days of the invoice date and without any deductions.
6.2 The client must reimburse any cash outlays, expenses, travel costs, compensation for costs in respect of business trips undertaken with motor vehicles, etc. following presentation of an invoice by BoYaSTAR; such amounts are due for payment immediately without any deductions. If the client is a consumer within the meaning of KSchG, BoYaSTAR must expressly inform the consumer in advance of the costs additional to the performance of the contract. Invoices may only be presented with the prior approval of the consumer.
6.3 All prices are in Euro (EUR), unless stated otherwise. If the EUR exchange rate moves by more than 3 (three) per cent for any currency that is contractually agreed in advance, BoYaSTAR is entitled, when invoicing in any foreign currency, to pass the whole of the difference on to the client; the right to rescind the contract is excluded in this case. If the client is a consumer within the meaning of KSchG, invoicing in a foreign currency requires the prior consent of the consumer.
6.4 Payments are fulfilled by transfer on the part of the client of the amount in question, exclusively to the bank account specified by BoYaSTAR on the relevant invoice. BoYaSTAR does not accept bills of exchange or cheques.
6.5 If the agreed service is not performed for reasons that lie within the client’s sphere of responsibility, or because of justified early termination of the contractual relationship by BoYaSTAR, BoYaSTAR remains entitled to payment of the entire agreed remuneration less any expenses not incurred. If an hourly fee has been agreed, the client must pay the remuneration for the number of hours that had been expected in respect of the entire agreed contractual service, less any expenses not incurred. If the client is not a consumer within the meaning of KSchG, the expenses not incurred are set at 25 (twenty-five) per cent as a lump sum of the remuneration for those services that BoYaSTAR or its instructed third parties had not performed by the date on which the contractual relationship was terminated.
6.6 In the event of the non-payment of interim statements of account, BoYaSTAR is released from its obligation to provide further services. This does not affect the assertion of further claims arising from such non-payment.
6.7 Any counter-claims of the client that are due for payment may only be set off against remuneration claims of BoYaSTAR if BoYaSTAR has acknowledged the counter-claim in writing or if the counter-claim has been the subject of a final and conclusive court judgement. All payments to BoYaSTAR will in the first instance be used to settle interest and costs, and then the oldest outstanding claim of BoYaSTAR; no consideration will be given to any contrary allocation to any other purpose.
6.8 If payment by the client is more than 10 (ten) days in arrears, despite written warning from BoYaSTAR, BoYaSTAR may, in addition to or instead of the rights to which it is entitled by law, either make an early call for client payments falling due at a later date, demand the provision of security by the client or charge late-payment interest from the date of default at a rate of 9.2 (nine point two) percentage points above the reference interest rate set by the Oesterreichische Nationalbank and applicable at that time pursuant to Section 456 of the Austrian Commercial Code (UGB), or 4 (four) per cent for consumers within the meaning of Section 1 KSchG, plus any VAT payable thereon In the event of late payment, the reimbursement of all dunning and collection costs is deemed to be agreed.
   
7. Electronic accounting
7.1 BoYaSTAR may choose to present invoices to the client in electronic form. The client expressly agrees to BoYaSTAR presenting invoices in electronic form.
   
8. Declaration of completeness; client’s duty of clarification
8.1 The client is responsible for ensuring that all necessary organisational framework conditions for the fulfilment of the contract are present at its place of business, so that BoYaSTAR is able to work with maximum efficiency.
8.2 The client must ensure, without the need for BoYaSTAR to make a special request, that all necessary documents for the fulfilment and execution of the mandate are presented to BoYaSTAR in a timely manner, and that BoYaSTAR is informed of all proceedings and circumstances that are important for the execution of the mandate. This also applies to all documents and records, events and circumstances which only become known in the course of BoYaSTAR’s work.
8.3 The client will adequately inform its employees and any employee representation body (works council) as envisaged by law that has been set up of this before BoYaSTAR starts its work.
8.4 In particular, the client is obliged to notify BoYaSTAR immediately in writing of any change of name, company name, postal address or electronic contact information. If the client does not inform BoYaSTAR of changes to its address, written communications from BoYaSTAR will continue to be sent to the most recently communicated address. Such communications will be deemed received by the client unless BoYaSTAR was aware of the change of address or was unaware of this as a result of gross negligence.
8.5 When placing instructions by telephone, the client must take suitable precautions to avoid mishearing and abuses. Losses resulting from the use of postal services, telephone, fax or other means of communication or transport, electronic or otherwise, and in particular from loss, delay, misunderstandings, distorted transmissions or duplication are borne by the client, provided that BoYaSTAR has not acted maliciously or with gross negligence.
   
9. Ensuring independence
9.1 The contracting partners give each other an assurance of mutual loyalty.
9.2 The contracting partners assure one another that all suitable measures will be taken to prevent any endangerment to the independence of the instructed third parties and the employees of BoYaSTAR. This applies in respect of offers by the client to provide employment or to take over orders on its own account.
   
10. Warranty
10.1 BoYaSTAR is entitled and obliged, without regard to any fault, to correct any inaccuracies and defects in its service that become known. BoYaSTAR will inform the client thereof immediately.
10.2 If the client is not a consumer within the meaning of KSchG, the statutory warranty rules are modified with the effect that the warranty period is 6 (six) months from the date on which the agreed services are rendered in full. The statutory warranty rules apply with regard to consumers within the meaning of KSchG.
10.3 If the client is not a consumer within the meaning of KSchG, the parties waive their right to contest an agreed contract on account of error or another legal ground, in particular a reduction by more than half of the true value.
   
11. Liability; compensation
11.1 BoYaSTAR is liable towards the client for loss or injury (except for personal injury) only in cases where it is grossly at fault (malicious intent or gross negligence). BoYaSTAR is not liable for lost earnings, indirect loss or damage or consequential loss or damage. This also applies mutatis mutandis to loss or injury caused by third parties introduced by BoYaSTAR.
11.2 If the client fails to provide information that is needed for the business instructed, or such information is incorrect, BoYaSTAR is not liable unless BoYaSTAR was aware of the inaccuracy or was unaware of this as a result of gross negligence.
11.3 The client is responsible for all losses arising from any legal incapacity on its part or on the part third parties instructed by it, unless notice of its legal incapacity was published in an Austrian commercial register or, in the case of third parties was communicated to BoYaSTAR in writing.
11.4 If the client is not a consumer within the meaning of KSchG, the client may only launch legal action for compensation within 6 (six) months of becoming aware of the loss or damage and the party responsible for it, and at the latest 3 (three) years of the event giving rise to the claim.
11.5 If the client is not a consumer within the meaning of KSchG, the client must demonstrate that the loss or damage is the fault of BoYaSTAR itself or of a third party engaged by BoYaSTAR.
11.6 If BoYaSTAR performs the contract with the assistance of third parties and warranty and/or liability claims arise in this regard towards these third parties, BoYaSTAR will assign these claims to the client. In such a case, the client is in the first instance liable towards such third parties.
11.7 The client undertakes to indemnify and hold harmless BoYaSTAR in respect of all possible breaches of patent, design, brand (trademarks) protections and/or copyrights in relation to an issued mandate. If a third party makes a claim against BoYaSTAR in this regard, the client bears all necessary legal advice, court and other costs and the costs of defending against such claims. The client is also required to hand over to BoYaSTAR all documentation and information needed for defending such claims, both promptly and free of charge. The same shall apply to claims arising from services offered by the client (e.g. prospectus liability).
   
12. Protection of intellectual property
12.1 The copyright to the works created by BoYaSTAR, its employees or instructed third parties (in particular offers, contracts, reports, analyses, expert reports, organisational plans, specifications, drafts, calculations, drawings, data carriers, etc.) rests exclusively with BoYaSTAR. The aforementioned works and the content thereof must be handled in strict confidence and kept secret by the client during and after the end of the contractual relationship and may be used by the client exclusively for the purposes covered by the contract. The client must ensure that the employees, corporate bodies and other persons used by it that have access to the aforementioned works of BoYaSTAR are placed under the same obligation. The client is to that extent not authorised to reproduce and/or disseminate the works without the express agreement of BoYaSTAR. Under no circumstances does any liability towards third parties arise for BoYaSTAR as a result of any unauthorised reproduction/dissemination of the works, in particular with reference to the correctness of the works.
12.2 Violation of these provisions by the client entitles BoYaSTAR to immediate early termination of the contractual relationship and the assertion of other statutory claims, in particular on the basis of omission and/or compensation for damages.
   
13. Confidentiality; data protection
13.1 BoYaSTAR has the right to record telephone calls conducted with its employees and use these as evidence.
13.2 BoYaSTAR undertakes to maintain unconditional confidentiality concerning all business affairs it learns of, in particular, business and company secrets and any information it acquires on the nature, operating scope and practical activities of the client.
13.3 In addition, BoYaSTAR undertakes to maintain confidentiality vis-à-vis third parties concerning the entire content of the works and all information and particulars it has received in connection with the creation of the works, and in particular also concerning data of customers of the client.
13.4 BoYaSTAR is released from the obligation of silence vis-à-vis any agents and deputies whose services it uses. However, it must fully impose this obligation on these persons, and is liable for any violation they commit against the obligation of secrecy, as it would be for any violation it may itself commit.
13.5 This duty of confidentiality shall remain in force after the end of the contract. An exception to this is in the event of any legal obligation to give evidence or to provide information.
13.6 BoYaSTAR is entitled to process the personal data entrusted to it, within the context of the purpose of the contractual relationship. The client gives BoYaSTAR a guarantee that all measures necessary for this have been taken, in particular measures within the meaning of the Austrian Data Protection Act (DSG), such as declarations of agreement by the persons affected.
   
14. Right of rescission of the client as a consumer
14.1 Where the client is a consumer within the meaning of Section 1 KSchG and has concluded the contract exclusively via one or more means of distance communication, it may rescind the contract in a 14 (fourteen)-day cooling-off period following its conclusion.
14.2 This cooling-off period commences on the day that the contract is concluded.
14.3 During the cooling-off period, performance of the contract may only start once the consumer has expressly given its consent.
14.4 If the client does not receive the contract terms and conditions and sales information until after the contract has been concluded, the cooling-off period shall start once all such terms and conditions and information have been received.
14.5 This right of rescission is not extended to consumers in relation to contracts that have already been performed in full by both sides with the express consent of the consumer before the consumer exercises the right of rescission.
14.6 Notice of rescission need not be provided in any particular form. The deadline is deemed met if the notice of rescission is received within the cooling-off period.
14.7 The notice of rescission must be sent to: BoYaSTAR GmbH, Zollgasse 15, 6850 Dornbirn, Austria or E-mail: office(at)boyastar.com
   
15. Consequences of rescission for distance contracts
15.1 If the consumer withdraws from the contract:
15.1.1 BoYaSTAR may demand immediate payment of compensation for the services already rendered under the contract;
15.1.2 BoYaSTAR must without delay, and at the latest within 30 (thirty) days of receiving the notice of rescission, refund the consumer any sum that it has received from the consumer, less the amount under 15.1.1 above;
15.1.3 the consumer must without delay, and at the latest within 30 (thirty) days of sending the notice of rescission, return all items and monies received from BoYaSTAR.
   
16. Duration of the contract
16.1 The contract will normally end when the agreed services have been rendered in full.
16.2 Irrespective of this, either party may terminate the contract for good cause at any time by either party, without observing any period of notice. Good cause exists in particular:
16.2.1 if a contracting partner breaches an important contractual obligation, or
16.2.2 if insolvency proceedings are instituted against a party, or if a petition for bankruptcy is rejected for lack of assets to cover the costs.
   
17. Final provisions
17.1 The parties confirm that all the statements in the contract are accurate and made in good conscience and undertake to make any changes known to each other immediately.
17.2 BoYaSTAR reserves the right to amend these General Terms and Conditions. Any amendment of a contract or of these General Terms and Conditions must be made in writing; this applies also to the written form requirement. Amendments by BoYaSTAR must be communicated to the client in writing and are deemed to have been accepted by the client - with the exception of clients who are consumers within the meaning of KSchG - after 30 (thirty) days unless an objection is raised in writing. No verbal side-agreements have been entered into.
17.3 Subject to the provisions of 6.7 above, offsetting of counter-claims of any kind against claims of BoYaSTAR is not permitted.
17.4 If any individual provisions of the contract with the client, including these General Terms and Conditions, should be or become invalid, either wholly or in part, the validity of the other provisions is not affected. The wholly or partially invalid regulation will be replaced by a provision whose economic purpose approximates as closely as possible that of the invalid provision.
17.5 Substantive Austrian law applies to any contract and all legal relationships between the client and BoYaSTAR, to the exclusion of the referral standards under international private law. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If the client is a consumer within the meaning of KSchG, the applicable substantive law shall be based on the legal provisions.
17.6 The place of jurisdiction for any disputes shall be in accordance with the mandatory legal provisions. Except where these provide otherwise, 6800 Feldkirch in Austria shall be the sole place of jurisdiction for all proceedings and disputes arising directly or indirectly out of or in connection with a contract, including those concerning its existence or non-existence. BoYaSTAR is nevertheless expressly authorised to enforce its rights at the place of residence/registered office of the client or before any other competent court.