Diese Allgemeinen Geschäftsbedingungen gelten für alle Rechtsgeschäfte und Verträge, die von der Meero Austria GmbH, Firmenbuch-Nr. (FN) 467638d, Hamerlinggasse 8/4/10, 8010 Graz, im Geschäftsbereich "CarCutter" gegenüber Unternehmern im Sinne des § 1 Abs. 2 KSchG und UGB (im Folgenden im Plural und geschlechtsneutral als "Partner" bezeichnet) abgeschlossen werden. Diese Allgemeinen Geschäftsbedingungen gelten nicht für Geschäfte oder Verträge in anderen Geschäftsbereichen der Meero Austria GmbH. Zur Klarstellung des Geltungsbereiches dieser Allgemeinen Geschäftsbedingungen wird Meero Austria GmbH im Folgenden als "CarCutter" bezeichnet.
Für alle Leistungen von CarCutter gelten diese Allgemeinen Geschäftsbedingungen. Geschäftsbedingungen von Partnern gelten nur dann, wenn sie von CarCutter ausdrücklich und schriftlich anerkannt werden. Abweichende Handlungen von CarCutter, sei es ausdrücklich, stillschweigend oder durch Unterlassen des Widerspruchs, gelten nicht als Zustimmung zu diesen Bedingungen des Partners.
Wenn diese Allgemeinen Geschäftsbedingungen für einen Vertrag gelten, gelten sie auch für alle zukünftigen Rechtsgeschäfte und Verträge mit dem Partner im Geschäftsbereich "CarCutter", sofern nicht in einem besonderen Geschäft oder Vertrag schriftlich andere Bedingungen vereinbart werden.
Diese Allgemeinen Geschäftsbedingungen sind auf www.car-cutter.com abrufbar und können jederzeit elektronisch eingesehen, ausgedruckt, heruntergeladen und auf einem Speichermedium gespeichert werden.
CarCutter hat eine gleichnamige Software zur automatisierten Verarbeitung von Fotos, Bildern, Grafiken und Filmen von Fahrzeugen entwickelt und bietet diese über eine Online-Plattform ("Plattform") und eine (mobile) Web-Applikation ("App") an (zusammen die "Dienste"). Die Dienste können Informationen, Logos, Zeichnungen, Grafiken, Daten oder andere Inhalte des Partners integrieren. Alle Fotos, Bilder, Abbildungen, Filme, Informationen, Logos, Zeichnungen, Grafiken, Daten oder sonstige Inhalte werden im Folgenden als "Inhalte" bezeichnet. Gegenstand eines Vertrages mit CarCutter ist die Bereitstellung der Software als Dienstleistung über die Services. Der Vertrag gilt als ordnungsgemäß erfüllt, wenn das Ergebnis (bearbeitete Inhalte) von CarCutter zum Download oder über die API-Schnittstelle zur Verfügung gestellt wird, unabhängig von einem Download oder einer Einbindung über die API-Schnittstelle durch den Partner.
Kommt ein Vertrag zwischen CarCutter und dem Partner zustande, so erhält der Partner das nicht ausschließliche und zeitlich auf die Dauer des Vertrages beschränkte Recht, die Software und das Ergebnis (verarbeitete Inhalte) weltweit für kommerzielle oder nichtkommerzielle Zwecke nach Maßgabe der geltenden Gesetze und Vorschriften, des Vertrages und dieser Bedingungen zu nutzen. Die Nutzung für folgende Zwecke ist untersagt: Forschung/Entwicklung von künstlicher Intelligenz, militärische Nutzung, Pornographie, Glücksspiel/Wetten, Terrorismus, Erstellung von "Fake News".
Paid or unpaid transfer of the software or access data for use by third parties or other provision to third parties is not permitted.
The software and the Services of CarCutter are copyrighted under the Austrian Copyright Act (“UrhG”). Copyright infringements will be legally pursued by CarCutter.
Technical requirements
The software is only available electronically on the internet. Partner is responsible to meet all technical requirements (system requirements) necessary for the operation of the software and for an operating internet connection at his own expenses. If the technical standards on the Internet or the software change, then Partner must adopt to these changes at his own expenses. Uploaded Content has to meet the file formats required by the software.
Availability
CarCutter undertakes to make the software available to Partner 98% of the time, calculated on a one-year basis. Availability is provided if the software can be accessed via an internet connection that meets the system specifications, as described in the specification. Repairing, maintenance and adapting measures for which notification has been given by CarCutter (see 3.3. below) as well as fortuitous events or force majeure (see 6.2. below) do not reduce the availability. Higher availability must be agreed separately.
Repairing, maintenance and adapting measures, tests and misuse
CarCutter has the right to temporarily restrict the use or to deactivate of the software and the Services for repairing, maintenance and adapting measures and for tests without giving reasons and compensation. Furthermore, CarCutter has the right to temporarily or permanently restrict the use, to deactivate of the software and the Services or to take other measures required by law to avoid, correct or identify misuse due to important reasons (such as unauthorized, improper or fraudulent use, e.g. hacker attacks) without giving reasons, notification and compensation.
Regulations for Apps
Apps or their underlying technology may not be downloaded to or exported or re-exported: (i) into (or to a resident or national of) Burma (Myanmar), Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to United States embargo; (ii) to anyone on the US Treasury Department's list of Specially Designated Nationals or on the US Commerce Department's Denied Party or Entity List; and (iii) to any prohibited country, person, end-user, or entity specified by US Export Laws. When using an App, Partner is responsible for complying with all trade regulations and both foreign and domestic laws as well as with the usage rules and terms and conditions of the mobile device the App is installed on (e.g. iOS, Android or Microsoft). The contract concluded by and between Partner and CarCutter does not affect these rules and terms and conditions of the mobile devices.
Offers of CarCutter are always provisional and unbinding and shall be regarded as an invitation to Partner to submit an offer (invitation ad offerendum). Furthermore, Offers of CarCutter are limited to its capacities or availability. The conclusion of contractual relationships (Contracts) requires a confirmation of acceptance by CarCutter, either explicitly (e.g. by signing of a contract or a conformation) or implicitly by providing the software or by supplying the ordered works. Electronical (automatic) confirmations of receipt which summarize the content of the order merely document the receipt of the order and shall not be deemed as acceptance of CarCutter.
Cost estimates of CarCutter are not binding, unless expressly confirmed by CarCutter as binding in writing.
CarCutter has the right to correct errors in calculation or spelling in its cost estimates, offers, conformations of acceptance or other documents at any time with binding effect.
Contracts with CarCutter shall enter into force upon confirmation of acceptance by CarCutter (see 4.1.) and shall be concluded for an unlimited period of time unless expressly otherwise agreed upon in writing (continuing obligation).
Unless expressly otherwise agreed upon in writing the contract may be terminated by either party in writing by giving notice in text form (e.g. written letter or e-mail) at the end of the respective accounting period (see 8.2.).
Irrespective of any statutory termination rights and irrespective of the legal qualification of the contract, CarCutter may terminate the contract fully or partially for cause with immediate effect by giving notice in text form (e.g. written letter or e-mail).
In particular, the following occurrences shall be deemed to constitute such causes, which entitle CarCutter to terminate the contract fully or partially with immediate effect (irrespective of other causes defined in these terms and conditions):
default or delay of Partner with performance of works or services or payments despite a reminder and setting or granting of an appropriate grace period;
circumstances beyond the control of CarCutter which prevent CarCutter from performing its works and services, in particular for more than 3 (three) months;
Partner’s infringements of fundamental provisions of the contract or these terms and conditions;
Partner’s attacks on or doubting / questioning of CarCutter’s intellectual property rights;
suspected infringements of Partner of 11.2. or other suspected acquisitions of know-how or competing acts of whatever nature by Partner;
[only if partner is subcontractor] if Partner no longer fulfills the criteria according to 7.2. or Partner involves unauthorized subcontractors.
Insofar as CarCutter terminates the contract with immediate effect Partners’ rights to claim renumeration, performance or compensation (in particular according to §§ 1168 and 1152 of the Austrian General Civil Code – “ABGB”) are excluded.
The (art of) performance of works or services shall be subject to written agreements only. All information regarding the state, the nature and the quality of works, services and the result (processed Content) wherever (e.g. in product specifications, prospectuses, catalogues or in other Contents) are not binding, unless expressly confirmed by CarCutter as binding in writing or unless a special state nature or quality is expressly agreed by CarCutter in writing. CarCutter has the right to partial performance of (even total) works, services and results.
Works and services of CarCutter are performed at Partner’s risk and expenses. Thus, Partner bears the performance and price risks. CarCutter is not responsible for its non-performance due to fortuitous events or force majeure, such as natural occurrences, war, terrorism, strikes, riots, breakdown of the energy or Internet connection, technical defects, epidemics, pandemics or sovereign acts or measures. If the performance is or becomes temporarily impossible due to such circumstances agreed performance limits shall be extended for the duration of the interference.
Right to involve subcontractors
CarCutter is entitled to involve subcontractors as it deems appropriate.
Regulations for subcontractors
These terms and conditions shall also apply for subcontractors of CarCutter. However, this section shall only apply for subcontractors and does not constitute rights and obligations for and against non-subcontractual Partners of CarCutter.
Subcontractors of CarCutter shall meet all conditions required or criteria set out by CarCutter for the proper and professional performance of the works and services ordered with regard to reliability, suitability to pursue the professional activity and the technical, economical / financial capacity to perform the contract. These conditions or criteria shall be met for the entire period of the contract. CarCutter is entitled to demand evidence from the subcontractor at any time to prove whether these conditions or criteria are met. If these conditions or criteria are not met any more for whatever reasons CarCutter may terminate the contract with immediate effect and without any compensation to the subcontractor.
In the performance of the contract the subcontractor shall fully comply with applicable obligations in the fields of labor, social and environmental law as well as obligations in collective agreements. Additionally, the subcontractor shall safeguard the right of employees posted for the purpose of providing cross-border services to a salary laid down by statute or collective agreement. In absence of mandatory fixed or minimum salary rates the subcontractor shall pay an adequate and local comparative salary to its employees. Except mere minor infringements of the mentioned obligations by the subcontractor and subject to other statutory and contractual rights CarCutter may terminate the contract with immediate effect and without any compensation to the subcontractor.
The subcontractor may only involve sub-subcontractors that meet all conditions required or criteria set out by CarCutter for the proper and professional performance of the works and services ordered with regard to reliability, technical, economical / financial capacity to perform the contract and suitability to pursue its professional activity with the prior written consent of CarCutter. The subcontractor shall verifiably inform CarCutter of any share of the contract it may intend to subcontract to sub-subcontractors, any proposed sub-subcontractors and any proposed changes of authorized sub-subcontractors along with evidence to prove whether the proposed sub-subcontractor meets the mentioned conditions or criteria. This information shall be submitted in due time before involving the sub-subcontractor so as to enable CarCutter to prove whether the proposed sub-subcontractor meets the mentioned conditions or criteria before involving the sub-subcontractor. CarCutter is entitled to reject the involvement of a sub-subcontractor without justification. If CarCutter rejects a sub-subcontractor the subcontractor may inform CarCutter of any other proposed sub-subcontractor.
CarCutter may terminate the contract with immediate effect and without any compensation to the subcontractor if subcontractor involves any unauthorized (without consent of CarCutter) sub-subcontractor. Subcontractor shall be liable without fault for damages, (court and attorney’s)fees and costs and administrative penalties (in particular, according to the Austrian laws to combat wage and social dumping) occurring due to an unauthorized (without consent of CarCutter) involvement of a sub-subcontractor. Further legal claims shall remain unaffected.
The involvement of sub-subcontractors does not affect or restrict subcontractor’s obligations to warranty and liability. The subcontractor shall ensure and be solely responsible for the reliability, technical, economical / financial capacity to perform the contract and suitability to pursue its professional activity and for the proper and professional performance of the works and services ordered according to the applicable laws and regulations, the contract and these terms and condition by itself as well as by its involved sub-subcontractors and by further subcontractors down the subcontracting chain.
All prices are listed in Euro (EUR) net plus VAT. Costs for transfer, fees, taxes, customs and other duties shall be paid by Partner. Partner hereby indemnifies CarCutter in this respect. CarCutter reserves the right to unilaterally adjust its prices as required due to changes of calculations or prices of manufacturers, suppliers or subcontractors of whatever reason or due to not occurred assumptions made by CarCutter.
CarCutter is entitled to issue and so submit invoices electronically via Partners’ e-mail-address. Unless expressly otherwise agreed invoices shall become due for payment (free and clear of any expenses and deduction) immediately upon (physically or electronically) delivery of the invoice or – under continuing obligations – at the end of the respective accounting period. The accounting period shall commence on the day the contract is concluded and end after one month. Payment transaction costs (e.g. cross-border or international transfer costs) shall be paid by Partner. Discounts by CarCutter shall be made only expressly in writing. CarCutter is entitled to down payment invoices and part payment invoices at any time.
Payments shall be made to CarCutter only, not to agents or distributors. In the case of delay or default in payment CarCutter will charge statutory default interest. Payment orders will be accepted only on account of performance but not instead of performance.
Unless expressly otherwise agreed upon in writing Partner grants CarCutter without (additional) consideration upon all protected works transferred, left or revealed by Partner or on behalf of Partner the non-exclusive, unrestricted and unlimited in space and time (irrespective of a termination of the contract, thus perpetual) right according to § 24 Abs 1 Satz 1 UrhG (not the obligation) to use and exploit the works in all present and future types of exploitation, in particular to develop, to distribute, to advertise and to promote (insofar as the exploitation does not violate legitimate interests of Partner) as well as to change, to process and to transfer the works to subcontractors and other business partners. If Partner is author itself it waives its right to be identified as the author (see § 20 UrhG). CarCutter is entitled to use and exploit non-protected works or Content transferred, left or revealed by Partner or on behalf of Partner (non-exclusively) in the same manner as protected works.
Unless Partner is not expressly granted rights to use or exploit works or Content by CarCutter in writing (e.g. granted exclusive or non-exclusive rights to exploit protected works according to the UrhG) all ownership-, intellectual property-, copy- and / or exploitation-rights on physical or electronic documentation, works or Content transferred, left or revealed by CarCutter are and remain the exclusive property of CarCutter. Partner is only entitled to use the result (processed Content) itself and for the purposes of the contract according to and restricted to these terms and conditions and the applicable laws and regulations. Any other using, changing, processing or exploiting of these documentation, works or Content is permitted only with prior written permission from CarCutter.
Partner guarantees that,
- he has all necessary ownership or intellectual property rights (such as copyright, exploitation rights, trademark rights, licenses or other industrial property rights) for processing the Content transferred, left or revealed to CarCutter;
- the Content transferred, left or revealed to CarCutter is free of any third party rights which restrict or prohibit the using, changing, processing or exploiting by CarCutter and does not infringe any third-party rights or any laws; and
- the granting of rights according to 9.1. to CarCutter is covered by its ownership or intellectual property rights.
Partner shall indemnify and hold CarCutter harmless without fault against any third-party claims (including court and attorney’s fees and costs) asserted or threatened against CarCutter due to an alleged infringement of this Section 9. by Partner.
CarCutter does not warrant and shall not be liable for the speed and the results of the software (processed Content) as well as for damages or loss of data. If, nevertheless, a warranty claim should exist, the warranty period is six months, only major defects shall entitle Partner to refuse acceptance and Partner shall bear the burden of proof for relevant defects of works and services of CarCutter over the entire warranty period.
In addition, CarCutters’ liability – except for damages to the health of a person and damages on the basis of mandatory damage claims according to the Austrian Product Liability Act (“PHG”) – is excluded unless the damage has been caused intentionally or through blatant gross negligence. CarCutters’ liability for pure financial losses, compensation for consequential damage, immaterial or indirect damage, damages from third-party claims, loss of profit and fortuitous events or force majeure (see 6.2.) is excluded. CarCutter is not liable for damages causes by persons who are not assigned to CarCutter according to mandatory law. Insofar CarCutters’ liability is not excluded Partner shall bear the burden of proof for fault or neglect of CarCutter and its persons assigned by mandatory law and limited to the sum insured that is available for the specific case.
CarCutter shall not be liable for Content transferred, left or revealed by Partner or on behalf of Partner and for the using, exploiting and exploitability of its works, services and results by Partner as well as for legal consequences that may arise for Partner and third parties.
The exclusion and limitation of liability also applies to the organs and their members, representatives, leaders, employees, attributable assistants and subcontractors.
Any action for damages against CarCutter have to be asserted within a term of preclusion of six months after Partner has gained knowledge of the damage, but not later than three years after the occurrence of the (primary) loss following the incident upon which the claim is based. This does not apply for damages to the health of a person.
Partner is obliged to keep all access data to the software (e.g. passwords, API-keys) secret.
Partner is obliged to refrain from any actions that compromise the functionality or operation of the software or the Services. In particular, any actions by Partner that scan or test vulnerabilities of the software, bypass security or access systems of the software or the Services or integrate malware into the software or the Services are prohibited.
Partner may not transfer or assign any rights or claims to third parties unless prior written permission of CarCutter except Partner is grossly disadvantaged (§ 1396a ABGB). Partner shall notify CarCutter immediately of an assignment. Until receipt of a verifiable notification of assignment CarCutter is entitled to make all services and payments with debt-discharging effect to Partner. CarCutter is unrestrictedly entitled to transfer or assign rights or claims to third parties (such as factoring companies). Partner expressly agrees its consent to such an assignment by signing a contract with CarCutter.
Subject to CarCutters’ right of approval Partner shall assign a contract concluded with CarCutter and its rights and obligations unrestricted and unlimited to any sole or universal legal successors including the obligation to impose the afore-mentioned assignment obligation on its legal successors. Partner may transfer or assign a contract concluded with CarCutter and its rights and obligations only with prior written consent of CarCutter. However, CarCutter may unrestrictedly transfer or assign a contract and its rights and obligations fully or partially to any sole or universal legal successors. Partner expressly agrees its consent to such an assignment by signing a contract with CarCutter.
Any Partners’ rights of challenging, rescission or contestation of a contract concluded with CarCutter (including these terms and conditions) for the purpose of adaptation or cancellation for reasons of error, lacking or ceased basis of the contract, reduction by more than half (laesio enormis) or fully or partially invalidity is expressly excluded.
Any contract concluded by and between CarCutter and Partner (including these terms and conditions as well as the issues of its valid conclusion and its pre- and post-contractual effects) and any non-contractual obligations by and between CarCutter and Partner are governed exclusively by the Laws of Austria excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.
The competent court at the registered head office of CarCutter shall have exclusive jurisdiction for any contractual or non-contractual claims or disputes by and between CarCutter and Partner. CarCutter, however, is entitled to alternatively lodge its claims at any other legal place of jurisdiction.
Disputes of whatever nature (such as disputes regarding the performance or renumeration) do not entitle Partner to temporarily or permanently suspend, withhold or cease its due services or payments.
The agreed place of performance and of payments resulting out or in connection with a contract underlying these terms and conditions is the registered head office of CarCutter.
A contract concluded by and between CarCutter and Partner supersedes any prior or contemporaneous agreements, declarations or other legal acts in whatsoever form. Subsidiary oral agreements to contracts with CarCutter are not valid. Alterations and amendments to a contract concluded with CarCutter as well as to subsidiary agreements shall be made only in writing according to § 886 ABGB. This obligation shall also apply to the agreed written-form requirement itself.
If any provision of a contract concluded with CarCutter (including these terms and conditions) should be fully or partially void, ineffective or unenforceable, the remaining provisions shall not be affected thereby. The void, ineffective or unenforceable provisions shall be replaced by valid, effective and enforceable provisions in writing which in their economic result and purpose will be similar to the replaced ones as far as possible. The same applies for the closure of a gap in
If a plurality of persons act as Partner vis-à-vis CarCutter (such as joint ventures or consortiums) the persons of Partner shall be jointly and severally liable for the performance of the obligations and duties of Partner and for any damage caused.
If these general terms and conditions are made available in other languages, CarCutter does not assume any warranty and liability for the (outsourced) translation into other languages. In case of linguistic deviations of the versions in other languages than German, the German version shall take precedence.
Any person signing a contract with CarCutter declares with further personal liability to compensation for damage that he or she is entitled to sign the contract on behalf of Partner and to conclude the contract with binding effect for Partner.
Unless expressly declared in writing Acts or omissions of CarCutter shall never be deemed as a waiver or as a (constitutive or declaratory) acknowledgment of obligations or duties of CarCutter. However, Partner constitutively acknowledges the proper and duly performance of the works and services of CarCutter as stipulated and without any defects by partial or total payment of invoices of CarCutter.
Partner is not entitled to retention, to offset claims against CarCutter or to withhold performance or payments. Statutory rights of Partner to retention, to offset claims or to withhold performance or payments (§§ 471, 1052 ABGB, 369 f UGB) are excluded. However, CarCutter shall have an unrestricted right to retention or to withhold performance or payments as well as a right to suspend performance of all current and future works, services or payments if Partner does not duly fulfill its obligations or payments fully or partially for whatever reason or in case of doubts that Partner will not be able or willing to duly fulfill its obligations or payments for whatever reason. Therefore, CarCutter is entitled at any time and without justification to demand prepayment or an adequate security from Partner.
Partner is not entitled to offset claims of CarCutter with any kind of counterclaims. However, CarCutter is entitled to offset claims of Partner with counterclaims of whatever nature.