Общие коммерческие условия 2016-10-25T09:01:23+00:00

General Terms and Conditions of Sale AGSES

General Terms and Conditions of Sale AGSES for Consumers

Solely the German version of these General Terms and Conditions of Sale shall be valid between the parties; this is only a translation.

1. Preamble

 AGSES International General Agency (hereinafter referred to as “AGSES”) developed a new type of biometric authentication solution in shape of the so called AGSES-Card. AGSES offers to consumers the AGSES-Card on which the fingerprints of the customer are stored encrypted for a biometric authentication and which serves as access to a system, as well as the use of the linked “myAGSES” Services that, for example, enable secure messaging and data transfer to the customer. The exact Products/Services Catalogue of AGSES in the latest version can be seen on http://www.agses.net/eng/legal/products-services-catalogue.

2. Scope of Validity

 2.1 These General Terms and Conditions of Sale exclusively shall apply to all contracts between customers and AGSES for the supply of goods and services as well to all rights and duties that result from the contracts.

2.2 Conflicting or deviating conditions of the customer shall only apply, if AGSES complies expressly and in writing. It shall be expressly stated that these General Terms and Conditions of Sale shall also keep their exclusive validity even in the case that AGSES carries out deliveries or services to the customer without reservation although being aware of the fact that the conditions of the customer conflict with or deviate from these General Terms and Conditions of Sale.

2.3 These General Terms and Conditions of Sale shall only apply to legal acts between consumers and AGSES. A consumer according to these General Terms and Conditions of Sale is any person that makes a transaction that is not part of this person´s business. This definition of a consumer is in accordance to §1/1 c.2 Austrian Consumer Protection Act.

2.4 These General Terms and Conditions of Sale shall also apply for future contracts between the parties, even with no further reference.

3. Offer and Conclusion of the Contract

 3.1 Offers of AGSES are non-binding towards the customer, with the exception that a following contract is concluded.

3.2 A contract relation comes about, if AGSES issues an order confirmation after receiving an order or charge of the customer or if the customer fulfills the conditions mentioned in the offer (advance or initial payment, security deposit, verification of creditworthiness). AGSES is only obliged to deliver after the customer fulfilled these or further conditions that were agreed between the parties (e.g. customs declarations, export licenses etc.). (But AGSES shall be at liberty to deliver nevertheless according to its own discretion or agreement with the customer.)

3.3 Only the offer and a possible order confirmation as well as associated agreements between the parties are relevant for content and scope of the order. Specifications in prospects, catalogues and other marketing or sales material are only binding for AGSES, if the order confirmation expressly refers to it. AGSES does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit confirmation.

3.4 Modifications and amendments to the contract shall only apply, if AGSES gives its explicit consent.

4. Implementation of the Contract

 4.1 The customer is obliged to inform AGSES about his data and other information that are relevant for the implementation of the contract and to provide AGSES the information at his account and to obtain possibly required approval of third persons. In case of changes during the implementation of the contract, the customer is obliged to inform AGSES without delay. AGSES is not obliged to verify the data, information or other activities provided by the customer and is not liable for damages that caused by incorrect or incomplete information from the customer.

4.2 Any notice respectively reminder from AGSES to the customer shall be sent to the e-mail address notified by the customer.

4.3 The customer is obliged to inform AGSES in written form with no delay about changes of his name or e-mail address. In case of no notification of change, documents are considered as being received by the customer, when they were sent to the recent address of the customer. If the customer does not wish any electronic correspondence, he is obliged to inform AGSES expressly in written form, to announce his delivery address to AGSES as well as to bear any arising expenses. Changing requests regarding invoices cannot delay their payment date.

4.4 If, after conclusion of the contract, AGSES recognizes that the customer’s ability to meet the payments may be imperiled, AGSES shall be entitled to exercise its rights in accordance with §1052/2 ABGB (Austrian Civil Code); that means AGSES reserves the right to claim assurance from the customer. In this case AGSES shall be entitled to declare due all receivables arising from the customer’s account that are not yet due.

4.5 The use of the AGSES-Card and the “myAGSES” platform require a network connection and any kind of end device (computer, smartphone etc. – the exact technical requirements can be seen athttp://www.agses.net/eng/legal/products-services-catalogue). Network connection and end device shall be provided by the customer.

4.6 AGSES provides its services under a Fair-Use-Policy. The Fair-Use-Policy makes sure that the available transmission capacity is distributed fairly to all users of the “myAGSES” platform.

4.7 Every customer is free to upload 100MB total capacity, except the case that something different were agreed in written form between the parties.

4.8 If the customer exceeds the available total capacity, AGSES shall be entitled to request the customer to take back stored data until the agreed total capacity is reached again and to set a period to the customer in order to do so. In case that the customer does not take (enough) data from the platform, AGSES reserves the right to cancel the stored data of the customer until the available total capacity of AGSES is reached again.

5. Payment

 5.1 All prices are in accordance to the pricelists of AGSES in the valid version respectively according to an individual offer. As far as nothing contrary was agreed, the prices are considered as net-prices in Euro ex works (according the Incoterms 2010) respectively ex stock from AGSES without package and loading. Charges relating to the delivery are to be borne by the customer. If the customer wishes a delivery with notification or transport insurance, these costs are charged at the customer´s account.

5.2 The customer is obliged to advance or initial payment in the amount of one third of the agreed price, unless contrary was arranged between the parties. AGSES is only obliged to delivery if the advance or initial payment arrives in due time.

5.3 Agreed prices – that means the advance or initial payment as well as the remaining invoiced amount – shall be transferred to the account of AGSES within 14 days after receipt of the respective invoice; the costs of the payment transaction shall be borne by the customer.

5.4 In case of default – even in case of default through no fault of the customer – the customer is obliged to bear the expenses of reminding and collection as well as any other costs that are necessary for an adequate litigation, if they are in reasonable relation to the asserted claim. Especially in case of hiring a debt collecting agency, the customer is obliged to bear these costs, as far as they do not exceed the maximum rate of the remuneration of debt collecting agencies according to the regulation of the BMWA (Federal Ministry of Economics and Labor). Beyond that, any further harm, especially the harm in terms of higher interest on possible credit accounts of AGSES caused by non-payment shall be indemnified by the customer independent of fault. Furthermore, AGSES is entitled to charge interest for default in the amount of 4% p.a. from due date (see also 6.4).

5.5 Beyond that, AGSES shall be entitled to exclude the customer from uploading new data in case of non-payment and two previous reminders as well as – after setting a further period of grace – to cancel the already stored data of the customer.

5.6 The customer shall submit objections against invoiced claims within 30 days from invoice date, otherwise the invoiced claims are considered to be accepted by the customer. AGSES will advise the customer of this period and the legal consequences in case of nonobservance.

5.7 The customer is not entitled to set-off with outstanding debts against AGSES, unless AGSES becomes insolvent, the counter claim is linked to the debt of the customer or the counter claim is accepted or legally ascertained.

6. Delivery, Distribution, Passing of Risk

6.1 Place of delivery of AGSES shall be the headquarters of AGSES. Place of fulfillment of the services that AGSES offers depends on the content of the respective contract; in case of doubt the headquarters of AGSES shall be relevant.

6.2 In case of ordering products, AGSES shall determine the route and means transport as well as the forwarder and carrier, if nothing contrary was agreed. AGSES shall only provide insurance for goods in transit or additional packaging, protection and/or transport equipment during the transport if specifically instructed to do so by the customer and if the costs are borne by same.

6.3 In the case of force majeure, the contractual obligations of both parties shall be suspended. Instances of force majeure shall also include internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of AGSES, acts of government and other circumstances for which neither of the parties is answerable.

6.4 Goods that are reported as ready for delivery shall be taken into customer´s charge immediately. If the customer falls behind with taking in charge of the goods or if he refuses to accept the delivery, the customer shall be bound to pay AGSES indemnity. AGSES reserves the right to insist on the acceptance of the delivery as well as to claim an appropriate indemnification for the additional expenses (transport-, handling-, storage costs, etc.). (Further consequences of default c.f. 5.4)

6.5 The risk of accidental loss of the goods shall be passed to the customer when the goods are handed over to the carrier respectively with the beginning of the storage.

6.6 In case that delivery is delayed on demand of the customer, because of force majeure or if the customer falls behind with taking in charge of the goods, the risk of accidental loss is passed to the customer for the period of delay starting with the date of readiness of delivery.

6.7 Partial delivery shall be tolerable.

7. Reservation of Title

 7.1 All delivered goods shall retain in the ownership of AGSES until complete payment of the purchasing price and all associated charges and expenses.

7.2 The customer is obliged to make any legal dispositions to protect the property of AGSES, this means that especially resale, pledging, security transfer or other disposal, transformation or converting of the goods shall be prohibited.

7.3 It shall be agreed that the enforcement of the claim of reservation of title shall not be understood as cancelation of the contract, unless AGSES expressly states the cancelation of the contract.

8. Loss of the AGSES-Card

8.1 The AGSES-Card-User has the possibility to proactively generate a modification-, cancelation- and blocking-password within the “myAGSES” platform, which should be printed and kept for the case of loss of the AGSES-Card.

8.2 The modification-password in combination with the purchase of a new AGSES-Card enables the AGSES-Card-User to access his formerly stored data. The cancelation- and blocking-password enables the Card-User to a temporary blocking or complete cancelation of his encrypted data that were stored on the “myAGSES” platform.

8.3 AGSES expressly points out to the Card-User to use the cancelation- and blocking-password advisedly – especially regarding the complete cancelation of the stored data – because once canceled data cannot be restored.

8.4 Any data on the AGSES-Card are encrypted this means that neither AGSES nor a third person can reach those data. AGSES expressly points out that in case of loss of the AGSES-Card, even the Card-User himself has no access to his stored data, because they can only be reached with the personalized AGSES-Card or – in case of proactive generation of a modification-password – with this modification-password and a new AGSES-Card.

8.5 In case of loss of the AGSES-Card, the customer nevertheless is obliged to pay the fees for the “myAGSES” Services until regular termination of the minimal service period according to the contract, even if these services are no longer accessible for the customer without the AGSES-Card. In any case, the customer is free to procure access to these services by buying a new AGSES-Card in combination with the proactively generated modification-password.

8.6 In case of loss of the AGSES-Card, AGSES is not liable for resulting harm, loss or lost profit.

9. Intellectual Property Rights

9.1 Existing, to the respective contractual performance introduced or in the course of contractual performance developed know-how, ideas, inventions and patents remain exclusive intellectual property of AGSES.

9.2 Content and concept of the offer of AGSES remain intellectual property of AGSES; any rights of use are entitled solely to AGSES. In case that a contract with AGSES does not come about, the customer is obliged to return any documents and elaborations about the project. The customer shall neither – even if a contract comes about – duplicate nor gain access to the offer and possible other documents about the project to third persons without explicit consent of AGSES. Vice versa AGSES will not pass the content and concept of the offer to third persons.

9.3 Any information, records, elaborations, and other documents in any form that were disclosed to the other contractual party, remain exclusive intellectual property of the disclosing party. They shall be treated as confidential by the receiving party, used exclusively during the period of contract and returned immediately on demand of the other party. The obligation to confidentiality ends five years after termination of the respective business relation. In case that the customer should – after prior consent of AGSES – assign rights and duties from this contract to a third person, the customer is also obliged to transfer the required obligation to confidentiality to this third person.

9.4 After fulfillment of his financial duties resulting from the contract, the customer obtains following rights of use for the duration of the contract:

a) A non-exclusive, non-transferable permission to use any for the contractual performance relevant ideas, know-how and inventions of AGSES, no matter if patented or not; the permission is valid solely for fulfillment of the purposes of the contract, not for other purposes;

b) the right to use any other solutions, information and documents of AGSES that are relevant for the contractual performance, at which the customer is obliged to keep any documents about the project that were provided by AGSES in confidence.

9.5 The customer is neither allowed to remove nor to adapt, change, modify or obliterate labels, trademarks, net brands etc. that are attached or appended to the delivered subjects of contract.

9.6 AGSES warrants that no circumstances – especially no intellectual property rights of third persons – are known to AGSES that may complicate or prohibit the development and production of the subjects of contract.

9.7 In case that a third person makes claims on the customer because of violation of intellectual property rights of third persons at usual application of the subject of contract, he shall inform AGSES immediately (within two working days). The customer shall detain from any statements, confessions or even solution proposals towards the claimant. AGSES will dispute the claim or modify the subject of contract accordingly. In case that the contractual use of the product might be prohibited in the course of a violation of existing intellectual property rights in perpetuity, AGSES will according to economic efficiency

—       modify the subject of contract in a way that there will be no violation of rights anymore;

—       purchase the necessary rights on the violated intellectual property rights for the customer.

9.8 Irrespective of the above mentioned regulation, AGSES assumes no liability for settlements or arrangements closed by the customer without prior consent of AGSES as well as regarding trials that concern (also) other than the products sold and developed by AGSES.

9.9 In case of violation of intellectual property rights of third persons, the customer shall indemnify and hold AGSES harmless regarding:

—       subjects of the contract that were solely based on descriptions, plans or other specifications of the customer;

—       components, parts etc. that were provided to AGSES by the customer;

—       claims that result from installation, use, development or modification of the goods by the customer or a third person that was hired by the customer.

10. Warranty

 10.1 AGSES warrants that the particular subject of the contract is in serviceable condition on delivery date and has the properties that were expressly stipulated in the contract respectively the properties that are usually expected. Specifications in prospects, catalogues and other marketing or sales material are only binding for AGSES, if the order confirmation expressly refers to it. AGSES does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit confirmation.

AGSES warrants the integrity (immutability), reproducibility and confidentiality of the available documents, as far as they are in the sphere of influence of AGSES.

10.2 AGSES especially warrants a basic Uptime of the AGSES-Authentication-Infrastructure that concerns the Security Manager (SM) operated by AGSES of 99,999% in the yearly average. Network connections to the AGSES-Authentication-Infrastructure are not in the sphere of influence of AGSES and therefore not covered of this regulation; breakdowns caused by technical or other problems, that cannot be influenced by AGSES (force majeure, fault of third parties, etc.) and lead to a non-availability of the AGSES-Authentication-Infrastructure, are also not covered of this regulation. The availability of the Infrastructure that can be noticed by the customer depends on the service-levels and the availability of every infrastructure provider (e.g. internet-provider of the customer), that enables the access to the AGSES-Authentication-Infrastructure to the customer. AGSES warrants a basic uptime of 99% in the yearly average for services that are offered by AGSES against payment (e.g. “myAGSES”) and that are based on the AGSES-Authentication-Infrastructure.

10.3 AGSES reserves the right to limit the access to the offered services for the case that the safety of the mains operation, the maintenance of the general server operation as well as the net-integrity require such a limitation, especially to avoid severe breakdowns of the net, software or stored data.

10.4 The customer is aware of the essential features of the subject of the contract. He has informed himself about any important circumstances, possible risks in connection with computing in general and with this project in particular. In case of doubts or further questions, the customer contacted employees of AGSES or other experts in order to advise him before conclusion of a contract. Thus the customer bears the risk that the subject of contract complies with his demands and requirements, that the adequate system requirements are given and that the subject of contract is compatible with the infrastructure of the customer.

10.5 The statutory regulations according to §9 Consumer Protection Act shall apply. Claims of warranty beyond the regulations mentioned above shall be excluded, especially claims of indemnifications for defects that did not arise on the subject of contract itself. This shall not be deemed as AGSES is compulsory liable in cases of purpose, gross negligence or lack of agreed properties. Claims and harms that are in no relation to the defectiveness of the goods themselves, but that are a consequence of this defectiveness, shall be excluded.

10.6 By all means, AGSES does not assume any warranty in cases of

—       defects, interruptions or damages that are not within the sphere of influence of AGSES

—       improper or inappropriate use or treatment

—       installation or operation by the customer or a third person

—       non-observance of the installation requirements and service conditions

—       naturally abrasion and overstraining

—       use of improper operation material and adaptation with products of other origin by the customer

—       violation of intellectual property rights of third persons that were caused by productions and deliveries of AGSES according to plans and requirements that were handed over to AGSES by the customer

—       modifications, additions or other changes of the program by the customer or third persons

—       contamination of the software with computer viruses at the customer´s infrastructure or interruption of the applicability of the programs caused by modifications within the system of the customer (e.g. faulty software of third persons that was not delivered to the customer by AGSES)

—       use with products and/or software from other origin

—       use of improper organization materials and data media

—       malfunction of the network connection

—       damages from transport etc.

10.7 Furthermore, AGSES does not warrant for the content, correctness, originality, completeness or for any other qualities of the stored and/or transferred data and documents within the “myAGSES” platform. AGSES therefore is not obliged to verify information that concerns such circumstances.

10.8 The warranty shall be canceled immediately in case that the customer himself or a not expressly authorized third person modifies, repairs or adapts the subject of contract without prior written consent of AGSES. Invoices for this shall not be accepted.

10.9 The warranty period shall be 2 years from delivery, unless nothing contrary was individually agreed between the parties.

11. Liability

11.1 AGSES shall be only liable for damages in the scope of the statutory regulations, as far as deliberate intention or gross negligence can be proven. The liability for slight negligence shall be excluded – except in case of personal injury.

11.2 AGSES shall not be liable for the consequences of breakdowns and interruptions caused by unexpected or exceptional circumstances, e.g. force majeure, internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of AGSES, acts of government, disruptions and other defects of the direct or indirect network connection, acts of third persons regarding the network as well as other circumstances for which neither of the parties is answerable or necessary and useful technical measures (e.g. maintenance).

11.3 AGSES is obliged to regular data backup in required scope. AGSES especially shall protect its systems against unauthorized disclosure, storage, modification as well as other unauthorized access and attacks in any form by third persons. Therefore, AGSES takes adequate measures according to the best available technology in required scope, especially to protect its infrastructure against viruses and other defective programs or program routines.

However, AGSES is not responsible, if a third person succeeds to reach and to use these data in an illegal manner. The customer accepts that it is not possible to avert any possible form of attacks – especially regarding future, not yet known forms of attacks – and that AGSES is only responsible according to the measures that are customary and reasonable in market, especially because not every network component is in the sphere of influence of AGSES and the end devices of the customer and the applications on these end devices as well as the network that the customer is involved in cannot be protected or influenced by AGSES.

11.4 AGSES carries out the offered services with highest diligence, reliability and availability. Except of the regulations of §6/1c.1 Consumer Protection Act and §9 Product Liability Act, AGSES assumes no liability that these services can be provided without interruptions, that the connections can always be established or the stored data will be preserved in every case.

11.5 AGSES is not obliged to check stored and/or transferred data and documents regarding content, correctness or completeness and therefore AGSES is not liable for the content, correctness or completeness of transferred data and documents or for the content and completeness of data and documents that are made accessible by the services of AGSES. AGSES is not liable for acts of third persons regarding the network and accepts no responsibility for harms that were caused by third persons to the customer in the course of mains operation or failure of mains operation.

11.6 The liability for consequential harm caused by a defect, other direct damage, loss or lost profit by defective, omitted or delayed delivery shall be excluded as far as these harms were caused by slight negligence and no person was injured. The liability for personal injuries as well as possible compensation claims according to the Product Liability Act shall not be limited by the regulations mentioned above.

11.7 As far as the liability is limited, this limitation shall also include the personal liability of associates, employees, agents and assistants of AGSES.

11.8 In case that the customer uploads virus-contaminated or other faulty documents, files or programs to the “myAGSES” platform and thereby causes a damage to AGSES, the customer is obliged to indemnify AGSES for this damage.

12. Assignment of Rights and Duties, Transfer of Title

12.1 The transfer of rights and duties from the contract to third persons by the customer as well as the transfer of the complete contract to third persons requires the prior expressly consent of AGSES. This shall also apply to any other form of granting rights as well as any other actual or legal disposal of the contract in its entirety or partly.

12.2 AGSES expressly points out that it is not possible to transfer the AGSES-Card to a third person after finishing the personalization with the biometric data of the AGSES-Card-User, because the personalization cannot be returned.

12.3 In case that AGSES accepts the continuous use of the services by a third person, the respective rights and duties shall be transferred to this third person. Disregarding of the transfer, the customer stays responsible towards AGSES for any and all payables from the period before transfer. Furthermore, in case of violation of the contract by the third person, the customer shall indemnify and hold AGSES harmless.

12.4 AGSES is in its own name and on its own expense entitled to commission a third person with the implementation of the contract or single contractual services after prior written information of the customer, unless the interest of the customer is affected.

12.5 AGSES shall also be entitled to transfer single rights from the contract between the customer and AGSES on the basis of §§1392 Austrian Civil Code (factoring, cession) to third persons.

12.6 Any and all rights and duties from the contract shall be transferred to the respective legal successor. Except the case of universal succession, every party of the contract is obliged to transfer the rights and duties from the contract to the legal successor.

13. Duration of the Contract

13.1 Either party may terminate an unlimited service agreement with registered letter by giving 60 days` prior notice to the other party, whereas the date of the post mark shall be effective. A limited agreement about the provision of services offered by AGSES may be terminated before expiration of the minimum period only for important reasons.

13.2 In case of an unlimited service agreement, both parties expressly waive from termination before expiration of one year, as far as nothing contrary was agreed in written form.

13.3 The regulations mentioned above do not affect the indispensable right of termination from important cause. As important cause shall be deemed the non-capacity of the other contractual party to act, the violation of legal regulations as well as the non- or misperformance of the contract. AGSES shall be entitled to terminate the contract for the cause of death of the customer, delayed payment, non-provision of the advance or initial payment as well as other possibly agreed deposits, suspicion of misuse of the services or gross deficits of the customer with performance of his cooperation duties or other essential contractual duties. In this case, AGSES shall be entitled to claim the payment of all services until termination date and indemnity of any dwell times or frustrated expenses for the time after.

13.4 The change of the enterprise or brand name of AGSES or the change of the ownership structure within the company of AGSES shall not be deemed as important cause and therefore does not entitle the customer to extraordinary termination.

13.5 In case that one of the parties wants to prematurely terminate the contract from miscellaneous reasons, the contract shall be deemed as terminated if the other party declares its acceptance and if the termination is in accordance with the following regulations.

13.6 In case of premature termination of the contract by the customer and acceptance of AGSES, AGSES shall be entitled to claim the payment of the continuous charges (license fees, charges for other services according to the contract) that would have to be paid by the customer for the regular duration of the waiver of termination respectively until expiration of the contract as well as an one-off payment for benefits (e.g. discounts in case of agreed waiver of termination), unless the customer can prove that AGSES is responsible for the premature termination of contract by gross negligence or deliberated intention. The amount of a possible one-off payment can be seen in the valid pricelist.

13.7 The regulations regarding obligation to confidentiality, data protection and obligation to inform shall stay effective for another period of five years after complete fulfillment of the contract through both parties and after termination of any agreements between the parties. This regulation shall also be effective for case that the contract cease to exist for any other reason.

14. Right of Withdrawal from a Contract in Relation with Distance Selling

14.1 In case that the contract was concluded exclusively with the aid of distant communication media as described in §5a/2 Consumer Protection Act, the consumer is entitled to withdraw from the contract within seven days after receiving the information according to §5d Consumer Protection Act; in case that the customer does not receive these information, he is entitled to withdraw from the contract within three month after conclusion of the contract. The withdrawal can be declared on www.support.agses.net.

14.2 The withdrawal from the contract is not possible in case that the ordered product was individually designed according to customer specifications or requirements (cf. §5 Consumer Protection Act) including the personalization of the AGSES-Card with the fingerprints of the AGSES-Card-User. Furthermore, the right of withdrawal is not applicable to contracts about services, that AGSES started to fulfill as agreed within seven working days since conclusion of the contract.

14.3 In case of legitimate withdrawal the goods and services received on both sides shall be postponed concurrently. In case that the customer is not able to return the received goods or if he returns the received goods just partly or in declined condition (including the personalization of the AGSES-Card), he is obliged to pay an adequate fee for the use, including compensation for lost value.

14.4 According to §5g/2 Consumer Protection Act, the customer is obliged to bear the costs for the return transport.

14.5 Services that have already been fulfilled and therefore no subject of the customer´s right of withdrawal, decrease the payment that has to be returned to the customer respectively will be charged to the customer in case of refusal of acceptance and treated as outstanding claims.

15. Data Protection

15.1 General data protection regulations

15.1.1 These data protection regulations shall be effective for all products, services (especially the “myAGSES” platform) and websites of AGSES, associated companies and partner enterprises.

15.1.2 AGSES only collects personal data in the scope that the customer provides them to AGSES with his acknowledgment and voluntarily by active input. AGSES will only process and use the personal data as far as it is necessary for the implementation of the services as well as transaction of requests and orders and as far as it is regulated by law respectively permitted by law.

15.1.3 Only in case that the customer has given his expressly permission, AGSES might use the personal data for the purposes of advertising as well as for the setting of services of AGSES.

15.1.4 The customer is entitled to withdraw from his former consent at any time.

15.1.5 AGSES will only transfer the data to third persons without the consent of the customer, if AGSES is legally obliged to do so. AGSES will not link the data with other data.

15.1.6 The customer is entitled to request information about his data stored by AGSES – these are those data that the customer provided to AGSES voluntarily within a request or order – at any time and free of charge. Furthermore, the customer is entitled to request the cancelation of the personal data that he transferred to AGSES. However, data that serve as a basis for an already existing business relation are excluded. To request a cancelation of the personal data, it shall be sufficient for the customer to send an e-mail or letter to AGSES.

15.1.7 The parties shall comply with any relevant data protection regulations and shall obtain the necessary security measures according to §14 Austrian Data Protection Law 2000.

15.2 Data protection regulations within the use of the “myAGSES” platform

15.2.1 The data that were stored by the AGSES-Card-User in the course of personalization of the AGSES-Card and within the use of the “myAGSES” platform are encrypted and cannot be decrypted by AGSES and therefore neither processed nor stored by AGSES.

15.2.2 Biometric data of the AGSES-Card-User are solely stored on the AGSES-Card itself and therefore cannot be read nor copied.

15.2.3 A transfer of the biometric data from the Card is impossible, because there are no such interfaces and the data themselves are stored in encrypted state.

15.2.4 Therefore it is not possible for AGSES to inform the AGSES-Card-User about this data respectively to cancel them. In order to enable the Card-User to cancel these data, AGSES offers the possibility to proactively generate a cancelation- and blocking-password within the “myAGSES” platform (see 8.2).

16. Severability Clause

The inoperativeness of one or several provisions of these General Terms and Conditions of Sale does not affect the validity of the remaining provisions. In such case the parties of this contract oblige to arrange a provision that is applicable and which meets best the legal and economic aim of both parties.

17. Place of Jurisdiction and Applicable Law

17.1 The local jurisdiction in case of disputes with consumers is due to §14 Consumer Protection Act.

17.2 The legal relationship between the parties shall be governed by Austrian law.

General Terms and Conditions of Sale AGSES for Entrepreneurs

Solely the German version of these General Terms and Conditions of Sale shall be valid between the parties; this is only a translation.

1. Preamble

 AGSES International General Agency (hereinafter referred to as “AGSES”) developed a new type of biometric authentication solution in shape of the so called AGSES-Card. AGSES offers to entrepreneurs the AGSES-Card on which the fingerprints of the customer are stored encrypted for a biometric authentication and which serves as access to a system, as well as the use of the linked “myAGSES” Services that, for example, enable secure messaging and data transfer to the customer. Furthermore, AGSES offers the license for the software that is necessary for the use and administration of the AGSES-Card and other provided software products as well as associated software keys and Authentication Authorities.

The exact Products/Services Catalogue of AGSES in the latest version can be seen onhttp://www.agses.net/eng/legal/products-services-catalogue.

2. Scope of Validity

 2.1 These General Terms and Conditions of Sale exclusively shall apply to all contracts between customers and AGSES for the supply of goods and services as well to all rights and duties that result from the contracts.

2.2 Conflicting or deviating conditions of the customer shall only apply, if AGSES complies expressly and in writing. It shall be expressly stated that these General Terms and Conditions of Sale shall also keep their exclusive validity even in the case that AGSES carries out deliveries or services to the customer without reservation although being aware of the fact that the conditions of the customer conflict with or deviate from these General Terms and Conditions of Sale.

2.3 These General Terms and Conditions of Sale shall only apply to legal acts between entrepreneurs and AGSES. An entrepreneur in terms of these General Terms and Conditions of Sale is a person that carries on a business company. A business company is every continuous organization based on autonomous economic activity, not necessarily profitmaking. This definition of an entrepreneur is in accordance to § 1 UGB (Austrian Commercial Code). According to § 1 KSchG (Consumer Protection Act) corporate bodies under public law are always entrepreneurs.

2.4 These General Terms and Conditions of Sale shall also apply for future contracts between the parties, even with no further reference.

3. Offer and Conclusion of the Contract

 3.1 Offers of AGSES are non-binding towards the customer, with the exception that a following contract is concluded.

3.2 A contract relation comes about, if AGSES issues an order confirmation in writing after receiving an order or charge of the customer or if the customer fulfills the conditions mentioned in the offer (advance or initial payment, security deposit, verification of creditworthiness). AGSES is only obliged to delivery after the customer fulfilled these or further conditions that were agreed in written form between the parties (e.g. customs declarations, export licenses etc.). (But AGSES shall be at liberty to deliver nevertheless according to its own discretion or agreement with the customer.)

3.3 Only the written offer and a possible written order confirmation as well as associated written agreements between the parties are relevant for content and scope of the order. Specifications in prospects, catalogues and other marketing or sales material are only binding for AGSES, if the order confirmation expressly refers to it. AGSES does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit and written confirmation.

3.4 Modifications and amendments to the contract shall only apply, if AGSES gives its explicit written consent. In case that these changes or circumstances that were not predictable to AGSES at the time of the conclusion of the contract cause additional costs, AGSES is entitled to charge these costs to the customer ´s account.

3.5 In case that the subject of the contract is the delivery of software, the delivery includes the code and description of the program that runs on the agreed equipment, which can be downloaded online on the homepage of AGSES. AGSES respectively – in case of delivery of software developed by third persons – the owner of the software completely reserves the program and documentation rights, except the case that something else was agreed expressly in written form between the parties.

4. Implementation of the Contract

 4.1 The customer is obliged to inform AGSES about his data and other information that are relevant for the implementation of the contract and to provide AGSES the information at his account and to obtain possibly required approval of third persons. In case of changes during the implementation of the contract, the customer is obliged to inform AGSES without delay. AGSES is not obliged to verify the data, information or other activities provided by the customer and is not liable for damages that caused by incorrect or incomplete information from the customer.

4.2 As far as nothing contrary was agreed between the parties, any notice from the customer to AGSES shall be sent in written form on electronic way via www.support.agses.net; any notice respectively reminders from AGSES to the customer shall be sent to the e-mail address notified by the customer.

4.3 The customer is obliged to inform AGSES in written form with no delay about changes of his name or e-mail address. In case of no notification of change, documents are considered as being received by the customer, when they were sent to the recent address of the customer. If the customer does not wish any electronic correspondence, he is obliged to inform AGSES expressly in written form, to announce his delivery address to AGSES as well as to bear any arising expenses. Changing requests regarding invoices cannot delay their payment date.

4.4 If, after conclusion of the contract, AGSES recognizes that the customer’s ability to meet the payments may be imperiled, AGSES shall be entitled to exercise its rights in accordance with §1052/2 ABGB (Austrian Civil Code); that means AGSES reserves the right to claim assurance from the customer. In this case AGSES shall be entitled to declare due all receivables arising from the customer’s account that are not yet due.

4.5 The use of the AGSES-Card, the “myAGSES” platform and any software products require a network connection and any kind of end device (computer, smartphone etc. – the exact technical requirements can be seen at http://www.agses.net/eng/legal/products-services-catalogue). Network connection and end device shall be provided by the customer.

4.6 AGSES provides its services under a Fair-Use-Policy. The Fair-Use-Policy makes sure that the available transmission capacity is distributed fairly to all users of the “myAGSES” platform.

4.7 Every customer is free to upload 100MB total capacity, except the case that something different were agreed in written form between the parties.

4.8 If the customer exceeds the available total capacity, AGSES shall be entitled to request the customer to take back stored data until the agreed total capacity is reached again and to set a period to the customer in order to do so. In case that the customer does not take (enough) data from the platform, AGSES reserves the right to cancel the stored data of the customer until the available total capacity of AGSES is reached again.

5. Payment

 5.1 All prices are in accordance to the pricelists of AGSES in the valid version respectively according to an individual offer. As far as nothing contrary was agreed, the prices are considered as net-prices in Euro ex works (according the Incoterms 2010) respectively ex stock from AGSES without package and loading. Charges relating to the delivery are to be borne by the customer. If the customer wishes a delivery with notification or transport insurance, these costs are charged at the customer´s account.

5.2 The compliance with the agreed prices implies that the positions on which the contract was based remain constant and can be provided without obstructions (except the case that AGSES is responsible for these obstructions). Subsequent unpredictable extensions or modifications that lead to additional expenses are to be borne by the customer. If levies or other external costs that are included in the agreed price change later than two month after conclusion of the contract, AGSES is entitled to a price modification in respective amount.

5.3 The customer is obliged to advance or initial payment in the amount of one third of the agreed price, unless contrary was arranged in written form between the parties. AGSES is only obliged to delivery if the advance or initial payment arrive in due time.

5.4 Agreed prices – that means the advance or initial payment as well as the remaining invoiced amount – shall be transferred to the account of AGSES within 14 days after receipt of the respective invoice; the costs of the payment transaction shall be borne by the customer.

5.5 A possibly arranged cash discount always refers to the net invoice value and requires the complete settlement of every obligation of the customer towards AGSES that is due at the date of the allowance of the cash discount. Unless nothing contrary was arranged, cash discount periods begin from date of invoice.

5.6 In case of default – even in case of default through no fault of the customer – the customer is obliged to bear the expenses of reminding and collection as well as any other costs that are necessary for an adequate litigation, if they are in reasonable relation to the asserted claim. Especially in case of hiring a debt collecting agency, the customer is obliged to bear these costs, as far as they do not exceed the maximum rate of the remuneration of debt collecting agencies according to the regulation of the BMWA (Federal Ministry of Economics and Labor). Beyond that, any further harm, especially the harm in terms of higher interest on possible credit accounts of AGSES caused by non-payment shall be indemnified by the customer independent of fault. Furthermore, AGSES is entitled to charge interest for default in the amount of 12% p.a. from due date (see also 6.6).

5.7 Beyond that, AGSES shall be entitled to exclude the customer from uploading new data in case of non-payment and two previous reminders as well as – after setting a further period of grace – to cancel the already stored data of the customer.

5.8 The customer shall submit objections against invoiced claims within 30 days from invoice date, otherwise the invoiced claims are considered to be accepted by the customer.

5.9 The customer is not entitled to set-off with outstanding debts against AGSES.

5.10 The customer has no right of retention and no right to reduce payments because of asserted claims against AGSES.

5.11 The customer has no defense of insecurity and no defense of lack of performance of the contract according §1052 ABGB (Austrian Civil Code).

6. Delivery, Distribution, Passing of Risk

6.1 Delivery dates that have not expressly been agreed as binding shall not be deemed to be binding.

Delivery periods that AGSES stated as being binding are only deemed to begin when all technical and other relevant questions have been resolved and possibly agreed conditions (e.g. export licenses, customs declarations) or other obligations (e.g. to cooperate) have been met by the customer (c.f. 4.1, 5.3), especially advance or initial payment.

6.2 In the event that delivery dates are non-binding, AGSES shall only be deemed to be in delay with its obligation to deliver after the customer sends a reminder indicating a reasonable period of grace, after this period has expired and further legal preconditions have been met.

6.3 Place of delivery of AGSES shall be the headquarters of AGSES. Place of fulfillment of the services that AGSES offers depends on the content of the respective contract; in case of doubt the headquarters of AGSES shall be relevant.

6.4 In case of ordering products, AGSES shall determine the route and means transport as well as the forwarder and carrier, if nothing contrary was agreed. AGSES shall only provide insurance for goods in transit or additional packaging, protection and/or transport equipment during the transport if specifically instructed to do so by the customer and if the costs are borne by same.

6.5 In the case of force majeure, the contractual obligations of both parties shall be suspended. Instances of force majeure shall also include internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of AGSES, acts of government and other circumstances for which neither of the parties is answerable.

6.6 Goods that are reported as ready for delivery shall be taken into customer´s charge immediately. If the customer falls behind with taking in charge of the goods or if he refuses to accept the delivery, the customer shall be bound to pay AGSES indemnity. AGSES reserves the right to insist on the acceptance of the delivery as well as to claim an appropriate indemnification for the additional expenses (transport-, handling-, storage costs, etc.). (Further consequences of default c.f. 5.6)

6.7 The risk of accidental loss of the goods shall be passed to the customer when the goods are handed over to the carrier respectively with the beginning of the storage.

6.8 In case that delivery is delayed on demand of the customer, because of force majeure or if the customer falls behind with taking in charge of the goods, the risk of accidental loss is passed to the customer for the period of delay starting with the date of readiness of delivery.

6.9 The customer shall accept delivered goods, even in case that they have possible deficiencies. Partial delivery shall be tolerable.

7. Reservation of Title

 7.1 All delivered goods shall retain in the ownership of AGSES until complete payment of the purchasing price and all associated charges and expenses.

7.2 The customer is obliged to make any legal dispositions to protect the property of AGSES this means that especially resale, pledging, security transfer or other disposal, transformation or converting of the goods shall be prohibited.

7.3 Only in case of individual agreement between the parties and after signing a Reseller Agreement or any other sales or distribution agreement provided by AGSES, the customer shall be entitled to resell the reserved goods in accordance with the regulations of the Reseller Agreement or the sales or distribution agreement as well as the regulations 7.4ff of these General Terms and Conditions of Sale.

7.4 If the customer should resale the reserved goods, any claims on the purchasing price including any security deposits against the purchaser are deemed to be assigned to AGSES.

7.5 On demand of AGSES, the customer is obliged to inform his purchaser immediately about the assignment to AGSES and to hand over any documents that are necessary for the collection of the receivables.

7.6 The customer is entitled to collect receivables from the sale. This collection authorization expires in case of withdrawal from AGSES, but at the latest in case of delayed payment or in case of petition in insolvency or bankruptcy respectively rejection of a respective petition due to lack of funds. AGSES will only exercise its right of withdrawal, if, after conclusion of the contract, AGSES recognizes that the customer’s ability to meet the payments resulting from this or other contracts with AGSES may be imperiled.

7.7 In case that the customer is in (partial) delay with one or more payments, stops his payment or an institution of insolvency or bankruptcy proceedings against the assets of the customer is petitioned respectively the application is rejected due to lack of funds, the customer is not allowed to dispose of the goods anymore.

7.8 In this event, AGSES shall be entitled to withdraw from the contract as well as from the Reseller Agreement respectively the sales or distribution agreement without setting a period of grace. AGSES shall also be entitled to ask for returning of the reserved goods or to withdraw the authorization of the collection of the receivables from the sale, even without withdrawal from the contract.

8. Loss of the AGSES-Card

8.1 The AGSES-Card-User has the possibility to proactively generate a modification-, cancelation- and blocking-password within the “myAGSES” platform, which should be printed and kept for the case of loss of the AGSES-Card.

8.2 The modification-password in combination with the purchase of a new AGSES-Card enables the AGSES-Card-User the access to his formerly stored data. The cancelation- and blocking-password enables the Card-User to a temporary blocking or complete cancelation of his encrypted data that were stored on the “myAGSES” platform.

8.3 AGSES expressly points out to the Card-User to use the cancelation- and blocking-password advisedly – especially regarding the complete cancelation of the stored data – because once canceled data cannot be restored.

8.4 Any data on the AGSES-Card are encrypted this means that neither AGSES nor a third person can reach those data. AGSES expressly points out that in case of loss of the AGSES-Card, even the Card-User himself has no access to his stored data, because they can only be reached with the personalized AGSES-Card or – in case of proactive generation of a modification-password – with this modification-password and a new AGSES-Card.

8.5 In case of loss of the AGSES-Card, the customer nevertheless is obliged to pay the fees for the “myAGSES” Services until regular termination of the minimal service period according to the contract, even if these services are no longer accessible for the customer without the AGSES-Card. In any case, the customer is free to procure access to these services by buying a new AGSES-Card in combination with the proactively generated modification-password.

8.6 In case of loss of the AGSES-Card, AGSES is not liable for resulting harm, loss or lost profit.

9. Intellectual Property Rights

9.1 Existing, to the respective contractual performance introduced or in the course of contractual performance developed know-how, ideas, inventions and patents remain exclusive intellectual property of AGSES.

9.2 Content and concept of the offer of AGSES remain intellectual property of AGSES; any rights of use are entitled solely to AGSES. In case that a contract with AGSES does not come about, the customer is obliged to return any documents and elaborations about the project. The customer shall neither – even if a contract comes about – duplicate nor gain access to the offer and possible other documents about the project without explicit written consent of AGSES to third persons. Vice versa AGSES will not pass the content and concept of the offer to third persons.

9.3 Any information, records, elaborations, and other documents in any form that were disclosed to the other contractual party, remain exclusive intellectual property of the disclosing party. They shall be treated as confidential by the receiving party, used exclusively during the period of contract and returned immediately on demand of the other party. The obligation to confidentiality ends five years after termination of the respective business relation. In case that the customer should – after prior written consent of AGSES – assign rights and duties from this contract to a third person, the customer is also obliged to transfer the required obligation to confidentiality to this third person.

9.4 If services from AGSES are based on descriptions, documents or plans from the customer or from third persons that are connected to the customer, the customer is obliged to take care for the granting of any copyrights necessary for their usage.

9.5 After fulfillment of his financial duties resulting from the contract, the customer obtains following rights of use for the duration of the contract:

a) A non-exclusive, non-transferable permission to use any for the contractual performance relevant ideas, know-how and inventions of AGSES, no matter if patented or not; the permission is valid solely for fulfillment of the purposes of the contract, not for other purposes;

b) the right to use the hardware and other solutions, information and documents of AGSES that are relevant for the contractual performance, at which the customer is obliged to keep any documents about the project that were provided by AGSES in confidence as well as

c) the non-exclusive, revocable, non-transferable, limited right to use any contractual software and updates, features, new technologies, connected documentations etc. that were created for the hardware defined in the respective contract with the customer according to type, amount and installation location in the course of using any software. As “use” shall be especially deemed the installation and application of any contractual software by the customer. The customer is obliged to comply with the license terms for any software – irrespective if the software is from AGSES or from third persons (e.g. “Freeware”, “Shareware”, ”Open Source”, etc.), offered by AGSES – and possible regulations for the use, and to omit any transfer or duplication of the software. The customer is obliged to indemnify and hold AGSES harmless in case of violation.

9.6 The customer has no permission to any other form of use, especially not to publish, transfer or make the use accessible to unauthorized third persons; the customer is not authorized to sub-licensing against payment or free of charge. Furthermore, the customer is not entitled to reconvert software components or parts of it (to decompile) or to use software components as sample in order to develop similar ones. The compliance with this regulation is an essential duty of the contract. In case of violation, the customer is obliged to pay a contractual penalty in the amount of the tenfold value of the order, irrespective of further claims from AGSES respectively – in case of delivery of software from third persons – from other licensors.

9.7 The customer is neither allowed to remove nor to adapt, change, modify or obliterate labels, trademarks, net brands etc. that are attached or appended to the delivered subjects of contract.

9.8 AGSES warrants that no circumstances – especially no intellectual property rights of third persons – are known to AGSES that may complicate or prohibit the development and production of the subjects of contract.

9.9 In case that a third person makes claims on the customer because of violation of intellectual property rights of third persons at usual application of the subject of contract, he shall inform AGSES immediately (within two working days) in written form. The customer shall detain from any statements, confessions or even solution proposals towards the claimant. AGSES will dispute the claim or modify the subject of contract accordingly. In case that the contractual use of the product might be prohibited in the course of a violation of existing intellectual property rights in perpetuity, AGSES will according to economic efficiency

—       modify the subject of contract in a way that there will be no violation of rights anymore;

—       purchase the necessary rights on the violated intellectual property rights for the customer.

9.10 Irrespective of the above mentioned regulation, AGSES assumes no liability for settlements or arrangements closed by the customer without prior written consent of AGSES as well as regarding trials that concern (also) other than the products sold and developed by AGSES.

9.11 In case of violation of intellectual property rights of third persons, the customer shall indemnify and hold AGSES harmless regarding:

—       subjects of the contract that were solely based on descriptions, plans or other specifications of the customer;

—       components, parts etc. that were provided to AGSES by the customer;

—       claims that result from installation, use, development or modification of the goods by the customer or a third person that was hired by the customer.

10. Warranty

10.1 AGSES warrants that the particular subject of the contract is in serviceable condition on delivery date and has the properties that were expressly stipulated in the contract respectively the properties that are usually expected. Specifications in prospects, catalogues and other marketing or sales material are only binding for AGSES, if the order confirmation expressly refers to it. AGSES does not owe additional properties of the subject of the contract. Illustrations in test programs, in product or project descriptions, in presentations and such are not to be deemed as agreed properties. The agreement of properties requires an explicit and written confirmation.

AGSES warrants the integrity (immutability), reproducibility and confidentiality of the available documents, as far as they are in the sphere of influence of AGSES.

10.2 AGSES especially warrants a basic Uptime of the AGSES-Authentication-Infrastructure that concerns the Security Manager (SM) operated by AGSES of 99,999% in the yearly average. Network connections to the AGSES-Authentication-Infrastructure are not in the sphere of influence of AGSES and therefore not covered of this regulation; breakdowns caused by technical or other problems, that cannot be influenced by AGSES (force majeure, fault of third parties, etc.) and lead to a non-availability of the AGSES-Authentication-Infrastructure, are also not covered of this regulation. The availability of the Infrastructure that can be noticed by the customer depends on the service-levels and the availability of every infrastructure provider (e.g. internet-provider of the customer), that enables the access to the AGSES-Authentication-Infrastructure to the customer. AGSES warrants a basic uptime of 99% in the yearly average for services that are offered by AGSES against payment (e.g. “myAGSES”) and that are based on the AGSES-Authentication-Infrastructure.

10.3 AGSES reserves the right to limit the access to the offered services for the case that the safety of the mains operation, the maintenance of the general server operation as well as the net-integrity require such a limitation, especially to avoid severe breakdowns of the net, software or stored data.

10.4 The customer is aware of the essential features of the subject of the contract. He has informed himself about any important circumstances, possible risks in connection with computing in general and with this project in particular. In case of doubts or further questions, the customer contacted employees of AGSES or other experts in order to advise him before conclusion of a contract. Thus the customer bears the risk that the subject of contract complies with his demands and requirements, that the adequate system requirements are given and that the subject of contract is compatible with the infrastructure of the customer.

10.5 The customer is obliged to submit the goods to a careful examination immediately after delivery and to reprehend possible defects within 14 working days in detailed written form to AGSES; the reprehension shall be only possible via www.suport.agses.net. Hidden defects shall be reprehended immediately after discovering. In case of noncompliance with the duty to examine and reprehend the goods, the customer loses any claims of warranty, indemnification as well as his claims of avoidance of contract on account of a mistake.

10.6 In case of complaints, the customer has to give AGSES immediately the chance to probe the objected goods; on demand of AGSES, the objected goods or a pattern of it has to be placed at the disposal of AGSES on the account of AGSES. In case of unjustified complaints, AGSES reserves the right to charge the customer with the costs for freight, transport and expenses for inspection.

10.7 As far as AGSES is responsible for a defect, AGSES is obliged to correct the defect by either rectification or exchange according to AGSES´ discretion. Annulment and reduction of price are possible only according to AGSES´ discretion. In case of delivery and development of software, the warranty is limited to reproducible (continuously repeatable) defects of the program function. If, in the course of rectification of the defect, new pieces are installed that increase the common value of the goods, the customer is obliged to compensate the rise in value towards AGSES.

10.8 The warranty period shall be 12 month from delivery, unless nothing contrary was agreed in writing by the parties.

10.9 The customer is obliged to prove that the defect already existed by the time of delivery – even within the first 6 month after delivery. The reversal of evidence according to §924/2 ABGB (Austrian Civil Code) shall be excluded.

10.10 Claims of warranty beyond the regulations mentioned above shall be excluded, especially claims of indemnifications for defects that did not arise on the subject of contract itself. This shall not be deemed as AGSES is compulsory liable in cases of purpose, gross negligence or lack of agreed properties. Claims and harms that are in no relation to the defectiveness of the goods themselves, but that are a consequence of this defectiveness, shall be excluded.

10.11 By all means, AGSES does not assume any warranty in cases of

—       defects, interruptions or damages that are not within the sphere of influence of AGSES

—       improper or inappropriate use or treatment

—       installation or operation by the customer or a third person

—       non-observance of the installation requirements and service conditions

—       naturally abrasion and overstraining

—       use of improper operation material and adaptation with products of other origin by the customer

—       violation of intellectual property rights of third persons that were caused by productions and deliveries of AGSES according to plans and requirements that were handed over to AGSES by the customer

—       modifications, additions or other changes of the program by the customer or third persons

—       contamination of the software with computer viruses at the customer´s infrastructure or interruption of the applicability of the programs caused by modifications within the system of the customer (e.g. faulty software of third persons that was not delivered to the customer by AGSES)

—       use with products and/or software from other origin

—       use of improper organization materials and data media

—       malfunction of the network connection

—       damages from transport etc.

Beyond that, AGSES does not warrant

—       that the delivered software is in accordance with the demands of the customer (except that these demands were expressly agreed in the contract)

—       that the programs run without breaks and defects

—       that the software is compatible with other programs of the customer or

—       that any software defects can be resolved.

10.12 Furthermore, AGSES does not warrant for the content, correctness, originality, completeness or for any other qualities of the stored and/or transferred data and documents within the scope of the “myAGSES” platform. AGSES therefore is not obliged to verify information that concerns such circumstances.

10.13 The warranty shall be canceled immediately in case that the customer himself or a not expressly authorized third person modifies, repairs or adapts the subject of contract without prior written consent of AGSES. Invoices for this shall not be accepted.

11. Liability

11.1 AGSES shall be only liable for damages of the delivered goods themselves and if purpose, gross negligence or culpable violation of essential contractual duties can be proven; AGSES shall not be liable for damages that are caused by slight negligence of AGSES. Other and exceeding claims of the customer, especially for lost profit, lost savings, consequential harm caused by a defect, financial loss, loss of interest and harms from claims of third persons – e.g. from the title of product liability – against AGSES are excluded in any case.

11.2 The compensation for damages is limited to the triple contract value, however, at most to €10.000.-, as far as nothing contrary was agreed between the parties in written form. Contract value is the price for the delivery of subject of contract.

11.3 The regulations mentioned above shall not be applicable to liability for personal injury and legal product liability.

11.4 AGSES is especially not liable for the consequences of breakdowns and interruptions caused by unexpected or exceptional circumstances, e.g. force majeure, internal and external labor disputes, transport delays, machinery breakdown, production deficits that do not fall in the sphere of AGSES, acts of government, disruptions and other defects of the direct or indirect network connection, acts of third persons regarding the network as well as other circumstances for which neither of the parties is answerable or necessary and useful technical measures (e.g. maintenance).

11.5 AGSES is obliged to regular data backup in required scope. AGSES especially shall protect its systems against unauthorized disclosure, storage, modification as well as other unauthorized access and attacks in any form by third persons. Therefore, AGSES takes adequate measures according to the best available technology in required scope, especially to protect its infrastructure against viruses and other defective programs or program routines.

However, AGSES is not responsible, if a third person succeeds to reach and to use these data in an illegal manner. The customer accepts that it is not possible to avert any possible form of attacks – especially regarding future, not yet known forms of attacks – and that AGSES is only responsible according to the measures that are customary and reasonable in market, especially because not every network component is in the sphere of influence of AGSES and the end devices of the customer and the applications on these end devices as well as the network that the customer is involved in cannot be protected or influenced by AGSES.

11.6 AGSES carries out the offered services with highest diligence, reliability and availability. Except of the regulations of §9 Product Liability Act, AGSES assumes no liability that these services can be provided without interruptions, that the connections can always be established or the stored data will be preserved in every case.

11.7 AGSES is not obliged to check stored and/or transferred data and documents regarding content, correctness or completeness and therefore AGSES is not liable for the content, correctness or completeness of transferred data and documents or for the content and completeness of data and documents that are made accessible by the services of AGSES. AGSES is not liable for acts of third persons regarding the network and accepts no responsibility for harms that were caused by third persons to the customer in the course of mains operation or failure of mains operation.

11.8 Compensation claims prescribe within the period mentioned in 10.8. In cases of violation of the contractual duties on purpose or gross negligence, fraudulent concealment of defects as well as compensation claims according to the Product Liability Act, the statutory periods of limitation shall be applicable.

11.9 As far as the liability is limited, this limitation shall also include the personal liability of associates, employees, agents and assistants of AGSES.

11.10 In case that the customer uploads virus-contaminated or other faulty documents, files or programs to the “myAGSES” platform and thereby causes a damage to AGSES, the customer is obliged to indemnify AGSES for this damage.

12. Assignment of Rights and Duties, Transfer of Title

12.1 The transfer of rights and duties from the contract to third persons by the customer as well as the transfer of the complete contract to third persons requires the prior expressly written consent of AGSES. This shall also apply to any other form of granting rights – e.g. granting of a license or sublicense, which is only allowed after individual written agreement between the parties, for example in form of a Reseller Agreement – as well as any other actual or legal disposal of the contract in its entirety or partly.

12.2 AGSES expressly points out that it is not possible to transfer the AGSES-Card to a third person after finishing the personalization with the biometric data of the AGSES-Card-User, because the personalization cannot be returned.

12.3 In case that AGSES accepts the continuous use of the services by a third person, the respective rights and duties shall be transferred to this third person. Disregarding of the transfer, the customer stays responsible towards AGSES for any and all payables from the period before transfer. Furthermore, in case of violation of the contract by the third person, the customer shall indemnify and hold AGSES harmless and already assign any claims resulting from the transfer to AGSES including all securities against the purchaser in order to safeguard the receivables.

12.4 AGSES is in its own name and on its own expense entitled to commission a third person with the implementation of the contract or single contractual services after prior written information of the customer, unless the interest of the customer is affected.

12.5 AGSES shall also be entitled to transfer single rights from the contract between the customer and AGSES on the basis of §§1392 Austrian Civil Code (factoring, cession) to third persons.

12.6 Any and all rights and duties from the contract shall be transferred to the respective legal successor. Except the case of universal succession, every party of the contract is obliged to transfer the rights and duties from the contract to the legal successor.

13. Duration of the Contract

13.1 Either party may terminate an unlimited service agreement with registered letter by giving 60 days` prior notice to the other party, whereas the date of the post mark shall be effective. A limited agreement about the provision of services offered by AGSES may be terminated before expiration of the minimum period only for important reasons.

13.2 In case of an unlimited service agreement, both parties expressly waive from termination before expiration of one year, as far as nothing contrary was agreed in written form.

13.3 The regulations mentioned above do not affect the indispensable right of termination from important cause. As important cause shall especially be deemed the non-capacity of the other contractual party to act, the violation of legal regulations as well as the non- or misperformance of the contract. AGSES shall especially be entitled to terminate the contract for the cause of death of the customer, delayed payment, non-provision of the advance or initial payment as well as other possibly agreed deposits, suspicion of misuse of the services or gross deficits of the customer with performance of his cooperation duties or other essential contractual duties. In this case, AGSES shall be entitled to claim the payment of all services until termination date and indemnity of any dwell times or frustrated expenses for the time after.

13.4 The change of the enterprise or brand name of AGSES or the change of the ownership structure within the company of AGSES shall not be deemed as important cause and therefore does not entitle the customer to extraordinary termination.

13.5 In case that one of the parties wants to prematurely terminate the contract from miscellaneous reasons, the contract shall be deemed as terminated if the other party declares its written acceptance and if the termination is in accordance with the following regulations.

13.6 In case of premature termination of the contract by the customer and acceptance of AGSES, AGSES shall be entitled to claim the payment of the continuous charges (license fees, charges for other services according to the contract) that would have to be paid by the customer for the regular duration of the waiver of termination respectively until expiration of the contract as well as an one-off payment for benefits (e.g. discounts in case of agreed waiver of termination), unless the customer can prove that AGSES is responsible for the premature termination of contract by gross negligence or deliberated intention. The amount of a possible one-off payment can be seen in the valid pricelist.

13.7 The regulations regarding obligation to confidentiality, data protection and obligation to inform shall stay effective for another period of five years after complete fulfillment of the contract through both parties and after termination of any agreements between the parties. This regulation shall also be effective for case that the contract cease to exist for any other reason.

14. Export

14.1 In case that the customer exports the goods, he shall be responsible for the compliance with the relevant national and international import and export regulations. The customer especially shall obtain the relevant export license at his own expense.

14.2 As far as the customer´s headquarter is outside the EU, the delivery obligation of AGSES is under reservation of the lawfulness according to Austrian and relevant international import and export regulations.

15. Export Certificate, Value-Added Tax (VAT)

15.1 If a customer, who is not resident in Austria (foreign purchaser), or his representative picks up, transports or sends goods to a third country, the customer shall be obliged to provide AGSES with the export certificate for tax purposes.

15.2 In case that this certificate won´t be provided, the customer shall be obliged to pay the within Austria effective VAT on the invoice amount for the delivery.

15.3 In case of delivery from Austria to other EU-Member States, the customer shall notify AGSES of his VAT identification number under which he realizes his acquisition taxation within the EU before delivery. Otherwise the customer shall be required to pay the VAT that AGSES is legally obliged to pay on its deliveries in addition to the agreed purchasing price.

16. Data Protection

16.1 General data protection regulations

16.1.1 These data protection regulations shall be effective for all products, services (especially the “myAGSES” platform) and websites of AGSES, associated companies and partner enterprises.

16.1.2 AGSES only collects personal data in the scope that the customer provides them to AGSES with his acknowledgment and voluntarily by active input. AGSES will only process and use the personal data as far as it is necessary for the implementation of the services as well as transaction of requests and orders and as far as it is regulated by law respectively permitted by law.

16.1.3 Only in case that the customer has given his expressly permission, AGSES might use the personal data for the purposes of advertising, especially as reference on the website of AGSES (www.agses.net) with enterprise name and logo as well as for the setting of services of AGSES.

16.1.4 The customer is entitled to withdraw from his former consent at any time.

16.1.5 AGSES will only transfer the data to third persons without the consent of the customer, if AGSES is legally obliged to do so. AGSES will not link the data with other data.

16.1.6 The customer is entitled to request information about his data stored by AGSES – these are those data that the customer provided to AGSES voluntarily within a request or order – at any time and free of charge. Furthermore, the customer is entitled to request the cancelation of the personal data that he transferred to AGSES. However, data that serve as a basis for an already existing business relation are excluded. To request a cancelation of the personal data, it shall be sufficient for the customer to send an e-mail or letter to AGSES.

16.1.7 The parties shall comply with any relevant data protection regulations and shall obtain the necessary security measures according to §14 Austrian Data Protection Law 2000.

16.2 Data protection regulations within the use of the “myAGSES” platform

16.2.1 The data that were stored by the AGSES-Card-User in the course of personalization of the AGSES-Card and within the use of the “myAGSES” platform are encrypted and cannot be decrypted by AGSES and therefore neither processed nor stored by AGSES.

16.2.2 Biometric data of the AGSES-Card-User are solely stored on the AGSES-Card itself and therefore cannot be read nor copied.

16.2.3 A transfer of the biometric data from the Card is impossible, because there are no such interfaces and the data themselves are stored in encrypted state.

16.2.4 Therefore it is not possible for AGSES to inform the AGSES-Card-User about this data respectively to cancel them. In order to enable the Card-User to cancel these data, AGSES offers the possibility to proactively generate a cancelation- and blocking-password within the “myAGSES” platform (see 8.2).

17. Severability Clause

The inoperativeness of one or several provisions of these General Terms and Conditions of Sale does not affect the validity of the remaining provisions. In such case the parties of this contract oblige to arrange a provision that is applicable and which meets best the legal and economic aim of both parties.

18. Place of Jurisdiction and Applicable Law

18.1 Place of jurisdiction for any and all dispute resulting from contracts with the customer shall be the Court of Commerce in Vienna. AGSES shall also be entitled to sue the customer at his own general place of jurisdiction.

18.2 The Austrian law shall applicable to any legal relations between the parties; the most recent version of the “UN Convention on Contracts for the International Sale of Goods of April 11th 1980” shall be excluded.