terms and conditions - MH-Direkt

General terms and conditions

1. subject matter
The general terms and conditions apply to all deliveries and services of MH|direkt e-commerce & fulfillment GmbH & Co KG (hereinafter referred to as MH|direkt). These regulate the provision and execution in accordance with the scope of services offered in an offer, as well as its supplements.

2. execution conditions, end date, test phase, responsibilities

  • The offer as well as its supplements shall contain the description of the service as well as the design and execution conditions, information on programs to be used as well as other services.
  • The contracting parties may agree in the offer on a schedule for the performance of the work and a scheduled date for the completion of the work.
  • The customer will accept the services immediately after the start of the project (completion date). An insignificant deviation from the agreed performance characteristics does not entitle the customer to claim a defect. The customer expressly agrees that no later than 30 days after the start the project is deemed accepted, provided that no defect is pointed out by the customer.
  • MH|direkt undertakes to remedy any defectiveness of the product within a reasonable period of time, where the Customer expressly undertakes to notify MH|direkt in detail of the defect in writing and to grant MH|direkt a reasonable period of time, but at least 4 weeks, for the remedy of this defect.
  • The responsibilities of the contractual partners are listed in the offer. In providing the service, MH|direkt is dependent on the customer fulfilling the assumed responsibilities. If this does not happen, or if no responsible person is named and delays or additional expenses arise as a result, MH|direkt can demand changes to the schedule and prices.

3. subcontracts

  • MH|direkt may subcontract work services to independent subcontractors selected by it. MH|direkt is not obliged to inform the Customer thereof
  • The terms and conditions for MH|direkt personnel contained in these General Terms and Conditions for Work Services shall also apply to the same extent to the subcontractor's personnel.

4. personnel:

  • The contractual partners shall each appoint a contact person (project manager) for mutual coordination and clarification of all questions arising in the course of the provision of services.
  • The contractual partners are responsible for the supervision, management and control of their respective assigned employees during the provision of services. 
5. a) Warranty
MH|direkt will remove warranty defects reported by the customer in written form. The warranty period is 6 months from the date of completion. Complaints must be reported to MH|direkt within 3 days at the latest. Further claims, such as the claim for improvement described above, are excluded.
 
5. b) Consumer price index
  • The agreed prices are value-assured on the basis of the consumer price index (CPI), which is continuously published by Statistics Austria. The agreed prices may be adjusted once a year on the basis of the last index figure published in the previous year with effect from the beginning of the following calendar year. The starting point for further adjustments is then the index figure on which the last adjustment was based.
  • In the event of price increases due to services, third-party suppliers, price-forming factors not covered by the CPI, MH directly reserves the right to make price adjustments after consultation with the Customer.

5. c) Rework clause
MH | direkt reserves the right to review the prices included in the offer once a year depending on the project development (deviation >10 %) and to rework them if necessary.

 

Annual price increases outside the consumer price index shall be agreed by MH directly with the Customer at the end of the year. Also affected by this are any price reductions due to a higher order volume.

 

6. confidential information, data protection

  • The contracting parties shall in principle only exchange non-confidential information during the performance of the contract. For the exchange of confidential information to be specifically designated as such, the conclusion of a separate agreement is required.
  • The contracting parties and their vicarious agents undertake to maintain secrecy about technical, personnel, commercial and other matters of the other contracting party, insofar as these are essential for the other and are not generally known (secrecy). The obligation to maintain secrecy shall not apply to persons who are involved in the matter or who have a right to information.
  • MH|direkt employees who have access to such data are expressly obligated to keep such data confidential in accordance with §20 Data Secrecy of the Data Protection Act. MH|direkt will not use such data for any purposes other than those agreed upon and will not pass them on without the consent of the client.
  • All customer and order data generated via the web store shall remain the property of the Customer and may not be utilized either by MH directly or by third-party providers.
  • MH direkt is obliged to maintain strictest confidentiality towards third parties. This shall also apply after termination of the contractual relationship. This duty of confidentiality applies to all circumstances that become known within the scope of this contractual relationship, in particular information about superiors, employees, sources of supply, customers and other contractual partners, about contract conclusions and conditions, about economic, technical, operational, fiscal and personal circumstances, about business papers and business plans of all kinds as well as about internal operational matters. The obligation to maintain secrecy also extends to data processed with the aid of automation and to the transmission of such data within the meaning of Section 20 of the Austrian Data Protection Act (DSG).
  • MH direkt undertakes not to disclose to third parties any data from data processing or other sources which have been entrusted to it, made accessible to it or which have come to its knowledge even by chance, unless expressly ordered to do so by the Customer. The only exceptions to this are obligations to provide information prescribed by law or by official order.
  • MH direkt will transfer the above obligations to its employees. In case of third party relationship, MH direkt is obliged to transfer its confidentiality obligation to cooperation partners.
  • Further information can be found in the privacy policy of MH direkt: Privacy Policy.

7. third party materials

  • The Customer may - to the extent provided for in the scope of services - transfer third party materials to MH|direkt or its subcontractors for modification or production of derived materials.
  • The customer shall ensure that the terms of use for third-party materials do not prevent processing within the scope of item 7a.
  • The Customer shall indemnify MH|direkt and its subcontractors against any liability for claims of third parties arising due to unauthorized handover for processing in accordance with item 11.1.

8. liability

  • MH|direkt does not assume any liability for any damages, except for the proof of intent or gross negligence within the scope of the legal regulations. Liability for slight negligence, compensation for consequential damages (e.g. consequential damages caused by work results) and financial losses, savings not achieved, lost profit, loss of interest and damages from third party claims against the contractual partner are expressly excluded.
  • It is expressly pointed out that, for example, in the case of illegal interventions by third parties or illegal transfer of data to third parties, MH|direkt assumes no liability whatsoever. Also, claims for damages and claims of any other kind are excluded in the event that MH|direkt is not able to provide the promised services due to force majeure such as fire, theft, vandalism.

9. system security
With regard to system security, it is agreed that the Customer is responsible for the security of his own system and MH|direkt cannot be held liable for any damage caused by any incorrect data transfer (possibly viruses, etc.).

10. copyrights and rights of use

  • All copyrights to the services provided (computer programs, software solutions, documentation, concepts, etc.) are the property of MH direkt or its licensors. MH direkt grants the Customer a non-exclusive right, unlimited in time, to use the services and computer programs designated in the order confirmation in its business operations according to the specifications set forth therein and in accordance with the applicable copyright law.
  • Use in relation to computer programs is any permanent or temporary whole or partial duplication (copying) by loading, displaying, running, transferring or storing the programs and data for the purpose of their execution. Use also includes the execution of the aforementioned actions for the purpose of observing, examining or testing the provided computer programs, as well as the production of backup copies of the provided computer program and the data contained therein, insofar as this is necessary for the future use of the program, the data or the overall system. In principle, only one backup copy may be made and kept, which must be clearly marked as such.
  • Furthermore, the Customer or third parties are not permitted to exploit the copyright-protected services of MH DIRECT by all known and unknown types of use under the Copyright Act without the consent of MH DIRECT, in particular to reproduce, distribute, perform, make publicly available and reproduce, edit or transform them. The Customer is not entitled to transfer the non-exclusive rights of use granted to him to third parties or to grant third parties corresponding rights of use.
  • The customer is entitled to combine the provided computer programs with other computer programs. Further modifications of the programs as well as error corrections are only permitted to the extent that they are necessary for the intended use. A retranslation (decompilation) of the program code into another form of representation is prohibited.
  • A partial translation for the purpose of establishing interoperability of an independently created computer program with a provided computer program or with other computer programs under the restrictions set forth in Section 40e UrhG shall be exempt from this provision.
  • No rights, in particular co-authorship rights, are acquired by the customer's participation in the production of the computer programs or concepts.
  • Violations of the above provisions will result in compensation for damages.
11. terms of payment, default of payment
  • All prices stated in the offer are exclusive of VAT.
  • MH|direkt invoices the service on a monthly basis.
  • Third-party services are billed on a weekly basis.
  • Invoices are payable upon receipt without deduction within a period of 14 days.
  • In case of default of payment, MH|direkt is entitled to charge additionally all expenses and costs resulting from it, especially for reminders, collection, as well as extrajudicial lawyer's fees. Interest on arrears is agreed at 15 % p. a.
  • The contracting parties have also agreed that in case of default of payment MH|direkt is entitled to suspend or withhold its corresponding services. In addition, MH|direkt is also entitled to retain as security goods, equipment, address stocks or other assets of the Customer which are in the custody of MH|direkt as a result of the business relationship. In the event that no payment agreement is made within 14 days after notification of this retention by MH|direkt to the Customer, these assets may also be sold and the proceeds of the sale credited against the outstanding invoice amounts under the above conditions.
  • Furthermore, MH|direkt is entitled to suspend services from contracts until full payment has been made.
  • Compliance with payments due to alleged defects but not acknowledged by MH|direkt is excluded. Payments shall in principle be credited first to expenses and costs incurred, then to interest and only lastly to the capital in arrears.
  • If delays occur, which are largely due to change requests and the like of the Client (or due to changed internal and external factors of the Client), the monthly payments will be invoiced at the latest after the second full month after the planned project start. The scheduled project start date will be defined as part of the bidding process or will begin when MH completes the project setup directly. Monthly payments include, but are not limited to, the minimum monthly revenue, mailboxes, flat customer service fees, hosting and other operating fees.
  • MH direkt reserves the right, upon termination of the business relationship, to carry out the removal only after full payment of all outstanding invoices (including final invoice). If payment is not made in full, the goods may be retained until receipt thereof.

12. general conditions for address brokering

  • MH|direkt is only an intermediary in the context of address leasing.
  • MH|direkt does not guarantee the accuracy of the information provided by the owner / lessor and is not liable for any promises made.
  • MH|direkt assumes no liability for the deliverability of the rented addresses.  
  • The offers made by MH|direkt are subject to change and in any case require the consent of the owner.
  • The rented and transferred addresses may only be further processed in companies that are authorized to do so in accordance with the Federal Data Protection Act. In any case, however, the addresses are subject to the relevant conditions of the Federal Data Protection Act.

13 Place of Performance and Jurisdiction
The place of performance is Lauterach, the competent court for any disputes in connection with legal transactions and legal relationships of any kind between MH|direkt and its customers is expressly agreed to be the competent court in Feldkirch. Austrian law shall be deemed agreed.

14 Written form
Subsidiary agreements, amendments or deviations must be made in writing, which may also only be waived in writing.