General Terms and Conditions
of Panomax GmbH, hereinafter referred to as Panomax .
- Scope of application
1.1. Contract basis. These General Terms and Conditions ("Terms") apply only to transactions with entrepreneurs.
Panomax concludes its contracts and provides its services exclusively based on its written quotes and the product and service descriptions, as valid from time to time, which form part of a quote (e.g. individual technical specifications or general product folders), price lists and these Terms.
Unless specific to a certain project (e.g. individual technical specifications), descriptions of goods or services, prices lists and terms and conditions, as amended from time to time, are thus applicable to all legal relationships between Panomax and the customer and, from the conclusion of the first contract, therefore automatically govern also all other contracts that are concluded between Panomax and the relevant customer, even if those price lists, product descriptions and terms and conditions are not explicitly incorporated by reference in these contracts.
1.2. Future changes. Changes in the description of goods or services, price lists and the Terms of Panomax will be notified to the customer in writing and shall be deemed to have been agreed, unless the customer objects to changes in writing within four weeks.
Once the new agreement enters into force, changes in the Terms will be applicable also to all other current contracts.
1.3 Supplementary agreements. All supplementary agreements of any kind that are reached both prior to the conclusion and also throughout the term of a contract are valid only if made in writing. This applies also to any waiver of the written form requirement.
1.4. Contract components of the customer. Even if Panomax is aware of the customer’s requirements in respect of the service content, such as requirements specifications, these will form part of the contract only if Panomax has integrated these into the offer or explicitly acknowledges these otherwise, for example by reference to these requirements.
Even if Panomax is aware of legal texts of the customer, such as terms and conditions or contract clauses, these will be applicable only if Panomax accepts these by way of an additional note (such as “Terms and conditions accepted”) which expressly refers to and covers a legal text. Otherwise, Panomax expressly objects to the inclusion of the customer’s legal texts such as terms and conditions or contract clauses.
The fact that Panomax has simply accepted the customer's specifications therefore does not mean that Panomax has accepted the customer's legal texts, even if those specifications should include these legal texts (and contain language such as "Our General Terms and Conditions shall apply").
1.5. Inconsistencies. In case of any inconsistency between the quote, product or service descriptions (project-specific documents, general documents), price lists, if any, and Panomax’s Terms, these shall apply in the above order. The individual elements will hence automatically amend the more general elements of the contract.
In case of any inconsistency between Panomax's elements of a contract and the customer's elements of a contract, all contract elements of Panomax shall prevail.
1.6. Invalidity. Should any term of the contract be invalid or unenforceable, such invalid term shall be replaced by a valid term that closest reflects the economic meaning and purpose of the invalid term.
- Conclusion and term of contract
2.1. Panomax's offers. A contract is concluded on the basis of an offer which Panomax makes to the customer. Panomax's offers are subject to change and non-binding in nature. Should the customer place an order, the customer shall be bound by that order two weeks after it was received by Panomax.
2.2. Offer by customer. Should the customer, by way of exception, award an unsolicited contract to Panomax without Panomax having previously made an offer (e.g. if additional contracts are awarded in current business relationships), the customer shall be bound by that order two weeks after it was received by Panomax.
2.3. Acceptance of an order by Panomax. A contract is therefore concluded only once Panomax has accepted the customer’s order.
As a matter of principle, Panomax shall accept orders in writing, for example by issuing an acknowledgment of order, unless Panomax's actions on behalf of the customer and on the basis of the order signify to the customer that Panomax accepts the customer's order. Panomax shall not be deemed to have accepted an order simply by acknowledging the receipt of an order, for instance a confirmation of receipt of a web shop.
2.4. Term of a contract. Contracts concluded for an indefinite time can be terminated with three months’ notice at the end of each half calendar year after the expiration of their minimum term.
- Scope of services, order processing and customer’s duty to cooperate
3.1 Place of performance. Place of performance shall be Panomax's registered office.
3.2. Scope of services. The scope of services to be provided by Panomax is defined in Panomax’s written specifications evident from all parts of the contract. Information from other sources (such as presentation documents, websites or catalogues) that are not included in the offer do not form part of the specifications.
The customer shall examine whether the specifications are complete and correspond to his requirements. After the order was placed, the specifications can be changed only consensually, and such changes can lead to changes in prices, deadlines and target dates.
3.3. Professional and skilled services. Unless the written specifications provide otherwise, Panomax owes professional and skilled services according to generally recognized rules of technology. Within the framework of the written specifications, Panomax has a degree of freedom in connection with the performance of services, provided that there are several possibilities of providing a service in a professional manner.
3.4. Interchangeable services. If and when compatible with the objectives of an order, Panomax may deviate from the specifications and replace services with other equivalent services.
3.5. Third-party services. Panomax may perform the services itself or rely on qualified third parties to perform a service (third-party services).
3.6. Agreed third-party services. If the provision of a service by a third party was agreed with the customer (agreed third-party service), Panomax may commission such third-party service in its own name or in the customer's name and for its own account or for the customer's account.
Regardless of the selected contract form, contractors providing agreed third-party services shall not be vicarious agents of Panomax. Panomax shall therefore be liable only for culpa in eligendo. Where the third party is appointed at the customer’s request, Panomax will not be liable for the third party at all.
Whenever Panomax and the customer have not agreed on special specifications or special legal texts to govern agreed third-party services, the third party’s specifications shall apply if the third party was commissioned on behalf of Panomax, and the entire content of the third party’s contract if the third party was commissioned on behalf of the customer.
Panomax is not obliged to verify and review the contract terms of third parties providing agreed third-party services. This is a responsibility to be assumed by the customer.
The customer is aware that many third-party services can be used only at standardised terms and conditions beyond Panomax’s control, are often governed by foreign laws and venues, and can be subject to unforeseeable and inevitable changes.
Panomax’s responsibility is merely to verify the suitability and fitness of the specifications. Whenever a third party is appointed at the customer’s request, it shall be the customer’s responsibility to review the specifications.
Should the duration of agreed third-party services, pursuant to an agreement, exceed the term of the contract between Panomax and the customer, the customer shall accede to the contract after the expiry of the contract concluded between Panomax and the customer if the third-party services were commissioned on behalf and for the account of Panomax. For the avoidance of doubt, this applies also if the contract is terminated for good cause.
3.7. Divisible services. Panomax may make partial deliveries of services which are divisible.
3.8. Forfeiture. The customer is obliged to timely collect all services ordered from Panomax or made available to Panomax for processing. If services are not collected in due time, Panomax may dispose of the services after three months and bill the costs of disposal to the customer.
3.9. Deadlines and target dates. All deadlines and target dates indicated by Panomax for the provision of supplies or services are non-binding, unless expressly marked as binding.
3.10. Inevitable or unforeseeable events. In case of inevitable or unforeseeable events, including but not limited to any delay in the fulfilment of obligations by the customer, and if inevitable or unforeseeable events occur with Panomax or its contractors that are unforeseeable for Panomax, deadlines will be extended or target dates postponed for as long as such inevitable and unforeseeable event prevails, including the time it takes to take the necessary organisational measures in such a case. Panomax shall notify the customer thereof in writing.
3.11. Customer’s duty to cooperate. The customer shall promptly provide any information in writing and make available all services to Panomax without request and in a format which permits these to be processed, which Panomax requires to provide its services.
This includes, but is not limited to nominating a contact person to coordinate the project, to make available documents, materials and facilities, to coordinate the order details, and to accept (release) partial services and services.
Whenever the requirement for the customer to provide information or services becomes evident only while Panomax provides its services, the customer shall promptly forward any such information.
The customer shall independently verify the fitness, accuracy and lawfulness of any information and services provided by him.
The customer shall be liable for any damage caused by any omission of, delay in or insufficiency of cooperation by the customer, including but not limited to any extra efforts thereby incurred by Panomax. If Panomax is unable to execute the services as agreed due to any omission of, delay in or insufficiency of cooperation by the customer, Panomax, notwithstanding other rights, may discontinue the service, provide other services for other customers instead, and continue the execution of the services for the customer hereunder not until after the completion of these services, provided that the customer has fulfilled his cooperation duties until then. All target dates and deadlines will thereby be postponed.
If Panomax is held liable by third parties due to an infringement of laws in connection with information or services provided by the customer, the customer shall also hold harmless and indemnify Panomax for and against such claim and support Panomax in the defence of third-party claims.
3.12. Interferences by the customer. In the event that the customer arbitrarily interferes with the services of Panomax or makes changes contrary to the terms of the agreement, the customer shall be liable for any extra effort incurred by Panomax, e.g. in connection with reviews, documentation, identification and allocation of defects, and corrective action.
3.13. Panomax's verification obligations. Panomax is only liable that the services created by Panomax are not per se unlawful (e.g. use of a copyrighted work without the author’s consent).
However, Panomax is not obliged to subject services created by Panomax to legal examination as to whether they infringe third-party rights or violate laws due to the customer's intended use of these services (e.g. use of graphics as logo). It shall be the customer's responsibility to perform these legal examinations particularly in terms of administrative law, criminal law, competition law, trademark law, design rights, copyrights, personal rights and data privacy laws or to retain a qualified legal expert to perform these examinations.
Whenever Panomax points out to the customer, before the customer awards a contract or when new order details become known during a contract, that it is necessary to subject the services to additional legal examination, the customer shall be liable to carry out such legal examination in respect of other rights or to take these risks in the event that Panomax was subject to information and verification obligations. Panomax shall thus be deemed to have properly provided the service as agreed.
3.14. Rights to services. As a matter of general principle, all rights to the agreed services are due to Panomax or its licensors. The customer is merely granted the right to use the services, having paid the agreed compensation in its entirety, in a scope that has been agreed or predefined by the licensors.
If no scope was agreed, the customer shall have the non-exclusive right to use the services for its own purposes and in its own business, but not the right to sublicense or transfer the services to third parties (or affiliated companies), with the right to process the services being limited to the legal unavoidable minimum.
The customer acknowledges that the services of Panomax are often based on works or services of third parties, subject to most different license terms. The customer shall comply with any license terms applicable to services or works of third parties, which form part of Panomax’s services and works.
3.15. Right to end product. The customer may only use the service in the agreed form as an end product, but is not entitled to receive the basics, work materials, interim results, etc which are necessary to create the services. Unless otherwise agreed, Panomax is not obliged to store such basics, work materials, interim results etc. once the work has been completed.
3.16. Reference. On all services Panomax has created for the customer, Panomax may refer to the customer and to another author, if appropriate, and Panomax may include information such as the customer’s name and logo, product description, project illustrations and the like in its own promotional materials in order to refer to or indicate the business relationship with the customer, without any compensation being due to the customer; the customer may revoke that right by written notice at any time.
- Special categories of services
4.1. Content such as text, photos & graphics.
Whenever Panomax's services include the creation of text, photos and graphics, its offer will only be for one draft and for minor changes. Should the draft not appeal to the customer's taste despite professional execution in line with the order, the creation of further drafts is chargeable.
Any such content provided by the customer must be provided in digital format and in a quality that allows further processing.
4.2 Domain registration. Should Panomax's services include the registration of domains on the customer's behalf, registration will be carried out at the terms and conditions of the respective provider / registrar. When registering domains on the customer's behalf, Panomax owes only corresponding endeavours to procure registration, yet no successful registration, as this depends on numerous factors outside Panomax's control.
4.3. Hosting. Whenever Panomax's services include programme or data hosting, Panomax does not owe the customer a certain level of reliability or data security, unless certain levels of reliability or data security are agreed in a particular case.
The aim is to achieve 99% availability in relation to the contract year.
4.4. Search engine optimization. Whenever Panomax's services include measures related to search engine optimization, Panomax owes the customer only professional execution suitable to attain the agreed objectives, but Panomax shall not be liable for the attainment of certain objectives.
4.5. Service and maintenance. Panomax does not owe any service and maintenance, unless these services have been agreed. Whenever Panomax's services include maintenance or similar work, Panomax does not owe certain response times, unless certain response times are agreed in a particular case.
4.6. Data back-up. The customer shall be responsible to ensure data back-up and data security especially before Panomax carries out any installation, maintenance or other work.
4.7. Remote monitoring. Should Panomax use systems for remote monitoring of the operability of the customer's systems without charging the customer for those services, Panomax is not liable for the monitoring of the operability of the systems.
4.8. Integration and use of third-party components and services. Unless Panomax’s services include the integration or use of components, services, platforms or similar offers of third parties, Panomax owes the customer only the design as specified on the order date. Any subsequent changes do not form part of the agreed service provision and will be offered, ordered and billed separately.
Furthermore, Panomax owes the customer only professional implementation suitable to achieve the agreed objectives, but is not liable for the achievement of certain objectives, since numerous platforms often arbitrarily change or limited possible uses.
4.9. App programming. Whenever Panomax's services include the programming of Apps, Panomax only owes execution based on the rules of the App store known on the date of the offer and on the basis of changes in rules of the App store already defined on the date the offer is made for the respective completion date. Later changes are not part of the agreed scope of services and will be offered, ordered and billed separately.
4.10. App platform compatibility: Whenever Panomax’s services include the creation of Apps for platforms, in case of a native App for a certain platform, if possible based on the technology used, Panomax will strive to achieve compatibility with the two most popular versions of that platform on the date the offer is made, and in case of a non-native App, compatibility with the two most popular platforms on the date on which the offer is made, here again with the two most popular versions.
4.10. Cross browser compatibility. Whenever Panomax's services include the creation of web applications, Panomax will strive to achieve compatibility with those web browsers holding a market share of at least 5% on the contract execution commencement date, if and when this is possible based on the techniques used.
4.11. Print. Whenever Panomax's services include the creation of printed works, the customer shall provide printing data that meet the requirements of Panomax. The customer shall accept deviations of colour and material due to technical reasons and customary in the industry, unless exact specifications were agreed. If exact specifications were agreed, any extra costs which are necessary to attain these specifications shall be reimbursed by the customer.
Excess and short deliveries of up to 5% for the most simplest work, and up to 10% for sophisticated work are permitted and will be billed proportionately based on production printing. In case of free-issue material, the tolerances of the supply industry will additionally be taken into account.
The latest edition of "Duden" (new spelling) is authoritative for German spelling.
Proofs will be provided to the customer only when agreed. Panomax may, however, provide proofs also in the absence of a relevant agreement.
5.1. Prices. All prices are quoted in Euros, plus statutory value added tax, ex Panomax's business domicile or branch office.
5.2. Cost estimates. Panomax's cost estimates are non-binding.
When, after Panomax has made a non-binding cost estimate, actual costs are expected to be more than 15% higher than costs budgeted in writing, Panomax must inform the customer in writing of the higher costs. The customer shall be deemed to have approved the cost overrun if he does not object in writing within one week from that notice and does not simultaneously disclose a less expensive alternative in writing. No special notice is necessary in case of cost overruns of less than 15%, which the customer is deemed to approve in advance.
5.3. Additional services. All services provided by Panomax that are not expressly covered by the agreed compensation, including but not limited to extra services agreed later on, will be charged separately.
5.4. Cost advance. Panomax is entitled to request the customer to advance costs in order to cover its own expenditure.
5.5. Partial services. Panomax is entitled to bill partial services.
5.6. Unjustified withdrawal. If the customer withdraws from the contract in its entirety or from any part of the contract without Panomax having acted with gross negligence or intent, Panomax is nevertheless entitled to the agreed compensation. In this case, Panomax must merely allow a deduction of expenses saved from not yet having purchased goods or third-party services. The same applies if Panomax withdraws from the contract for a reason within the customer’s control.
5.7. Price adjustments. In case of contracts concluded for an indefinite time and contracts that are renewed automatically, Panomax is entitled to reasonably adjust the price on an annual basis in consideration of factors such as inflation, consumer and producer price index, collective bargaining agreements that were concluded, currency fluctuations, and similar external factors beyond Panomax’s control.
Panomax may also reasonably adjust the prices of individual services after conclusion of a contract if the cost of such services increases by more than 5% beyond Panomax's control.
6.1. Payment date and payment. Panomax's invoices are due on a net cash basis without deduction from the invoice date and, unless agreed to the contrary, are payable within 14 days from receipt of the invoice or, in case of online transactions, when the customer places the order. Goods are delivered or shipped and other services executed only after the customer has paid the full purchase price.
6.2. Reservation of title. Panomax retains title to the goods supplied until such time as the customer has paid the purchase price in its entirety, including all related costs and interest.
In case of default, Panomax may enforce its rights of reservation. In this case, the customer agrees that Panomax may collect the goods. The enforcement by Panomax of its reservation of title does not operate as withdrawal from the contract, unless Panomax expressly gives notice of withdrawal.
If the customer resells the goods, the customer assigns its claim toward the buyer to Panomax for the purpose of security. Panomax is entitled to notify the buyer of that assignment.
6.3. No set-off and retention. The customer may not set off its own claims against Panomax’s claims, even when claims are related, unless the customer's claim was acknowledged by Panomax in writing or was established by a court. The customer shall not have a right of retention.
6.4. Late payment. In case of any delay in payment, the customer shall pay statutory interest applicable to entrepreneurs, but at least 9% per year. The customer shall pay all costs and expenses incurred in connection with the collection of a claim, including but not limited to collection charges and other necessary costs for appropriate legal pursuit of rights.
6.5. Continuing payment default. After Panomax has unsuccessfully reminded the customer to pay and granted an at least seven-day grace period for payment, Panomax may inform the customer that all services and partial services already provided, including those Panomax has provided pursuant to other contracts concluded with the customer, are immediately due for payment and may temporarily discontinue the provision of yet unpaid services until such time as the customer has paid all outstanding compensations in their entirety.
After a period of another week has elapsed without the customer having made payment, Panomax may withdraw from all contracts and claim compensation for lost profit, in addition to compensation for services already provided. Panomax may also discontinue services which the customer has already paid, provided that such discontinuation will generate savings. In this event, Panomax may set off its savings against outstanding claims.
Notwithstanding the above, Panomax may certainly sue the customer also immediately after the expiry of the due date.
6.6. Payment by instalment. If and when Panomax and the customer have agreed on payment by instalment, the entire compensation is due immediately even if the customer is in arrears with only one instalment.
- Data protection, confidentiality & no solicitation
7.1. Data protection by Panomax. The data privacy statement of Panomax shall apply.
7.2. Customer’s data privacy policies. The customer processes personal data of Panomax or its relevant employees only for the purpose of the implementation of the contract based on the existing contractual relationship and legal provisions.
There is no obligation to conclude the contract. However, non-conclusion of the contract will lead to impossibility of placing an order.
The customer may not process data for any other purposes.
All data are subject to the agreed or legal obligation of confidentiality and the protection of personal data. Except for the transfer of data to recipients such as banks, tax advisers, lawyers, mail-handling services providers etc., who need such data for the implementation of the contract, Panomax’s data may be transferred only based on legal provisions or with the consent of Panomax.
The customer may keep data of Panomax for a maximum period of thirty years after completion of the orders for the purpose of documentation and to meet legal obligations.
7.3. Confidentiality. The customer shall keep confidential and may not utilize for itself any confidential information on Panomax, its projects and its customers. This confidentiality obligation survives also after termination of the contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 50,000 for every breach.
7.4. No solicitation. The customer may not solicit or entice away customers or employees of Panomax. This obligation survives three years after termination of a contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 50,000 for every breach.
8.1. Transfer of risk. In case of shipments of goods, the risk will always transfer to the customer as soon as Panomax has delivered the goods to the carrier. Goods are always shipped uninsured, unless the customer has instructed Panomax to procure insurance at the customer's cost and expense.
8.2. Complaints. In case Panomax requests acceptance of services on an interim basis or after delivery and start of live operation, the customer shall accept (“release”) the services provided or to be accepted within 14 days in writing, at the latest, or give written notice of defects or damage within 14 days.
In case of acceptance on an interim basis, Panomax can continue its work not until after the customer has accepted / "released" the services on an interim basis. The customer shall be deemed to have automatically accepted the services if he does not accept services in due time or uses services in live operation prior to acceptance.
Hidden defects or damage arising not until after the expiry of 14 days, yet within time limits within which the customer may enforce guarantee, warranty and compensation claims, shall be reported by the customer also within 14 days after the customer has identified the defect or damage.
Any defect or damage which the customer should be able to identify with the care and diligence of a prudent business man, subject to appropriate controls, shall be notified.
Given the special significance of interim acceptance to avoid defects and shortcomings that will affect all other process steps, controls performed in the context of interim acceptance shall be final, detailed and particularly thorough controls. During handover, initial, yet detailed controls shall be performed. Given the special significance of live operation to avoid damage during operation, controls performed when live operation starts shall again be final, detailed and particularly thorough controls.
The customer's complaint shall describe a defect or damage in detailed and understandable form. The customer is required to indicate the exact times and conditions under which a non-permanent defect or damage occurs. The customer shall allow Panomax to take all measures which are necessary to investigate and rectify any defect or damage.
Unless the customer notifies defects in due time, the customer shall not be entitled to lodge claims based on warranty and for the compensation of damage as well as claims based on other liability rules, including but not limited to recourse claims.
8.3. Guarantee. To the extent that the products sold by Panomax come with a manufacturer's guarantee, such guarantee shall be enforced directly vis-à-vis the manufacturers. If the contractor has promised a guarantee, the deadline within which the guarantee may be enforced starts to run with delivery. The entitlement to guarantee is statute-barred six months after the customer has become aware of the occurrence of an event covered by the guarantee, but not later than upon expiry of the guarantee period. Whenever the content of the guarantee cannot be derived from the guarantee undertaking, Panomax shall be liable for usually expected characteristics.
8.4. Warranty. The right to warranty and the right to assert recourse claims based on warranty is limited to six months from delivery. There is no right to enforce any warranty for used goods.
The customer is entitled at Panomax's election to improvement or exchange of a service, in case of non-substantial defects, to a price reduction and, in case of substantial defects, also to cancellation of the contract.
Any corrective action taken to remedy a defect will neither renew the warranty period nor will such warranty period recommence for the partial service subject to corrective action.
8.5. Error, shortfall exceeding fifty percent. The customer may not challenge a contract on the grounds of error or shortfall exceeding fifty percent.
8.6. Compensation for damage and other claims. The customer cannot seek compensation for damage and assert claims based on other liability provisions, including but not limited to recourse claims, unless these are based on severe gross negligence or intent of Panomax.
These claims of the customer shall forfeit six months after damage and damaging party were identified, and in any event three years after the incriminated action has taken place.
This limitation of liability shall not include claims asserted based on personal injury and other mandatory liability rules.
8.7. Burden of proof. The burden of proof cannot be shifted to Panomax. Especially the presence of a defect on the delivery date, the point in time when a defect was identified, the timeliness of a complaint, and the presence and level of fault must be proven by the customer.
8.8. Grace period. The customer may lodge claims due to non-fulfilment of the contract as agreed only if the customer has granted Panomax a reasonable grace period of at least fourteen days in writing. This applies also if the contract is terminated for good cause.
8.9. Withdrawal. The customer may withdraw from the contract in writing by sending a registered letter.
- Final provisions
9.1. Applicable law. All legal relationships and circumstances between the customer and Panomax shall exclusively be governed by and construed in accordance with Austrian law, to the exclusion of international conflict of law rules. The provisions of the UN Sales Convention shall not apply.
9.2. Jurisdiction. All disputes arising between Panomax and the customer shall be referred to the Austrian court having subject-matter jurisdiction in Salzburg. Panomax may also sue the customer at Panomax's general venue and the customer's general venue.