AGB
Here you find the General Terms and Conditions of Koller Media GmbH Austria, hereinafter referred to as Koller Media.
Updated: October 2014
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Validity
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Contractual basis
Koller Media shall conclude its contracts and render its services exclusively on the basis of its written quotations, as well as the respective valid version of any written price lists and product descriptions that are pertinent to the quotation, and the present General Terms and Conditions.
From the conclusion of the first contract, the price lists, product descriptions and General Terms and Conditions shall automatically form the basis for all subsequent contracts between Koller Media and the respective Client in the version valid at the time, even if no explicit reference is made to these price lists, product descriptions and General Terms and Conditions. -
Future changes
The Client shall be informed in writing of changes to the price lists, product descriptions and General Terms and Conditions by Koller Media, and these shall be deemed to be agreed if entrepreneurs do not object to them within two weeks or consumers within four weeks. -
Additional agreements
All forms of additional agreement, both before the conclusion of the contract and during the term of the contract, must be in writing in order to be valid. With respect to entrepreneurs, this shall also apply to a deviation from the requirement for the written form. -
Elements of the contract from the Client
Service specifications coming from the Client shall only be valid, even when Koller Media is aware of these, if they are accepted by Koller Media.
Legal texts coming from the Client shall only be valid, even when Koller Media is aware of these, if they are accepted by Koller Media with an additional note (e.g. “T&Cs accepted”) that expressly encompasses these legal texts. Otherwise, Koller Media expressly objects to the incorporation of the Client’s legal texts. The mere acceptance of the Client’s service specifications by Koller Media shall, therefore, not bring about any acceptance of the Client’s legal texts, even if the former include legal texts (e.g. “Our T&Cs apply.”). -
Procedure in the event of inconsistencies
In the event of inconsistencies between the quotation, any price lists and product descriptions, and the General Terms and Conditions of Koller Media, these shall apply in the order specified. The individual quotation shall also take precedence over all other elements of the contract.
In the event of inconsistencies between elements of the contract from Koller Media and elements of the contract from the Client, the elements of the contract from Koller Media shall take precedence. -
Procedure in the event of invalidity
If individual provisions of the contract are invalid or impracticable, an invalid provision must, in the case of contracts with entrepreneurs, be replaced with a valid provision that comes as close as possible to the economic purpose of the invalid provision.
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Contractual basis
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Conclusion of the contract
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Quotation by Koller Media
The basis for the conclusion of the contract shall be the respective quotation issued by Koller Media to the Client. Koller Media’s quotations shall be subject to change and non-binding. If the Client places an order, the Client shall be bound by this for two weeks after its receipt by Koller Media. -
Order from the Client
If, as an exception, the Client places an order with Koller Media unprompted, i.e. without receiving a quotation from Koller Media beforehand, entrepreneurs shall be bound by this for two weeks, consumers for one week, after its receipt by Koller Media. -
Acceptance by Koller Media
The contract shall always only come into effect when the order is accepted by Koller Media.
The acceptance must take place in writing, e.g. through an order confirmation, unless Koller Media indicates, e.g. by clearly starting to do work for the Client on the basis of the order, that Koller Media accepts the order.
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Quotation by Koller Media
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Scope of services, order processing and cooperation obligations of the Client
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Scope of the services
The scope of the services to be rendered can be found in Koller Media’s written service specifications. -
Professional service
Within the framework of the written service specifications, Koller Media shall have flexibility in the execution of the services, insofar as there are several professional options for their execution. -
Third party services
Koller Media shall be entitled to execute the services itself or to make use of competent third parties for the performance of the services (third party service). -
Agreed third party services
In the event that it is agreed with the Client that a service shall be rendered as a third party service (agreed third party service), Koller Media is entitled to commission the third party service, at its own discretion, in its own name or in the name of the Client and for its own account or for the account of the Client.
In the event that third party services are agreed, the contractors shall not be vicarious agents of Koller Media.
Insofar as no particular service specifications and no particular legal texts have been agreed between Koller Media and the Client for these third party services, in the event that third party services are agreed, the service specifications of the third party shall also apply for the Client in the event that the third party is commissioned in the name of Koller Media, and the service specifications and the legal texts of the third party in the event that the third party is commissioned in the name of the Client.
Insofar as the term of agreed third party services exceeds the term of the contract between Koller Media and the Client, as agreed, the Client must step in, in the event of third party services commissioned in the name of or for the account of Koller Media, after the end of the term of the contract between Koller Media and the Client. This shall expressly also apply in the event of a termination of the contract for good cause. -
Divisible services
In the event of divisible services, Koller Media is entitled to make part deliveries. -
Interchangeable services
Provided that this is in keeping with the objectives of the order, Koller Media is entitled to deviate from the service specifications and replace services with other equivalent services. -
Forfeiture
The Client must collect all the services ordered from Koller Media or handed over to Koller Media for processing on-time. In the event that it is not collected on-time, Koller Media is entitled to charge storage costs and to dispose of the services after three months in the case of contracts with entrepreneurs and after six months in the case of contracts with consumers, and to pay the disposal costs. -
Cooperation obligations of the Client
The Client must immediately provide Koller Media with all the information and all the services that are necessary for the performance of the services by Koller Media. If the necessity of the provision of information or services by the Client only becomes known during the performance of the services by Koller Media, the Client must submit these immediately.
The Client must check the information and services that he provides for their suitability, accuracy and legality itself.
The Client shall be liable for all damages that arise as a result of the inadequate or delayed cooperation of the Client or the Client’s failure to cooperate, and in particular for the loss of time incurred by Koller Media as a result and for the costs of appropriate legal representation, at the discretion of Koller Media.
If third parties make a claim against Koller Media on account of an infringement of rights associated with the information or services provided by the Client, the Client shall indemnify Koller Media and support it in its defence against all claims of third parties. -
Examination obligations of Koller Media
Koller Media shall only be liable for ensuring that the services rendered by Koller Media are not unlawful in themselves.
Koller Media shall, however, have no obligation to check the services rendered by Koller Media for any infringement of third party rights or for any infringements of rights that arise as a result of the type of use planned by the Client. The Client must perform these legal examinations itself, in particular with regard to administrative, penal, competition, trademark, labelling, registered design, copyright and data protection law and personality rights, or have them performed by a suitably trained legal expert.
Insofar as Koller Media refers to the necessity of an additional legal examination of services with respect to other rights or refers to other risks before the placement of the order or during the order, after new order details become known, the liability for the performance of this legal examination with respect to other rights or for the assumption of these risks shall be transferred to the Client in the event that information or examination obligations existed on the part of Koller Media. Koller Media’s services shall thus be deemed to be rendered properly and in accordance with the agreement. -
Rights to the services
Koller Media or its licensors shall be entitled to all the rights to the agreed services.
The Client shall receive the right to use the services to the agreed extent, after the payment in full of the agreed fee.
In the event that the scope has not been agreed, this shall include non-exclusive use, not including any right to sub-license them or pass them on to third parties, for personal use in Austria.
Any licencing conditions for works and services of third parties that are part of the works or services of Koller Media must be observed by the Client. -
Right to the end product
The Client shall only have a right to the delivery of the service in the agreed form as an end product, but not to the bases, tools, interim results etc. that are necessary for the performance of the services. Unless this has been agreed, Koller Media shall have no obligation to keep these bases, tools, interim results etc. after the completion of the work. -
Reference material
Koller Media is entitled to refer to all the services performed by Koller Media for the Client and also to another author and to use data such as the name and logo of the client, the project description, project illustrations and similar as reference material or as a reference to the business relationship with the Client, subject to written revocation at any time, in its own advertising materials.
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Scope of the services
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Special provisions for particular types of services
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Maintenance
Insofar as Koller Media’s services include maintenance work or similar, Koller Media shall not be liable for a particular response time, unless particular response times are agreed in the individual case. -
Data protection
The Client shall be responsible for the protection and security of his data, especially with respect to installation work, maintenance work or other work by Koller Media. -
Remote monitoring
Insofar as Koller Media uses systems for the remote monitoring of the functionality of the Client’s systems, without charging for this service, Koller Media shall not be liable for the monitoring of the functionality of the systems. -
Domain registration
Insofar as the services of Koller Media include the registration of domains in the name of the Client, this shall take place under the conditions of the respective provider / registrar. In the event of the registration of domains for the Client, Koller Media shall only be liable for a corresponding effort towards registration, but not for success, as this depends on a number of factors over which Koller Media has no influence. -
Hosting
Insofar as Koller Media’s services include the hosting of programmes or data, Koller Media shall not be liable for any particular fail safety or data security, unless some fail safety or data security levels are agreed in the individual case. -
Search engine optimisation
Insofar as Koller Media’s services include measures in the area of search engine optimisation, Koller Media shall only be liable for a professional execution of these that is suitable for the achievement of the agreed objectives, but shall not be liable for the achievement of specific objectives. -
Graphics
Insofar as Koller Media’s services include the production of graphics, the quotation shall only apply to one design and minor modifications in each case. If the design does not suit the Client’s taste, in spite of professional execution, in accordance with the order, there shall be a charge for the creation of further designs. -
Printing
Insofar as Koller Media’s services include the creation of printed works, the Client must provide print data that meets the requirements of Koller Media.
The Client must accept technical differences and differences that are customary in the industry with respect to the colour and the material, unless precise specifications have been agreed. In the event that precise specifications have been agreed, the additional costs necessary for the achievement of these specifications must be reimbursed by the Client.
Excess and short deliveries of up to 5 % for the simplest work, and of up to 10 % for more complicated work shall be permitted and shall be charged for proportionately on the basis of continued printing. For provided material, the tolerance rates of the ancillary industry must also be taken into consideration.
The latest edition of Duden (“new spelling”) shall be decisive for the spelling in German.
Proofs shall only be submitted to the Client by arrangement. Koller Media is, however, entitled, to submit proofs without an arrangement.
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Maintenance
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Deadlines
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Inevitable or unforeseeable events
Inevitable or unforeseeable events – in particular the tardiness of the Client in the performance of his obligations, as well as delays at Koller Media or its contractors that cannot be foreseen by Koller Media – shall extend periods or postpone deadlines by the duration of the inevitable and unforeseeable event plus the duration of the organisational measures that are necessary in such a case. Koller Media must inform the Client of this in writing. -
Grace period
The non-observance of periods or deadlines shall not entitle the Client to assert claims until he has granted Koller Media an appropriate grace period of at least fourteen days.
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Inevitable or unforeseeable events
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Fee
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Prices
All the prices shall be quoted ex registered office or branch office of Koller Media in euros plus VAT for contracts with contractors, and incl. the statutory level of VAT for contracts with consumers. -
Cost estimates
Cost estimates by Koller Media to entrepreneurs shall not be binding. The same shall apply for consumers if explicit reference has been made to the non-binding nature of the cost estimate before it is submitted.
If it can be foreseen, after a non-binding cost estimate has been issued, that the actual costs will exceed the estimated costs by more than 15 %, Koller Media must inform the Client of the higher costs in writing. The higher costs shall be deemed to be accepted by the Client if the Client does not object within one week of receiving this information, suggesting a more cost-effective alternative in writing at the same time as making this objection. In the event that the actual costs exceed the estimated costs by up to 15 %, no separate information is necessary. These higher costs shall be deemed to be approved by the Client from the outset. -
Requirement specifications
The creation of requirement specifications by Koller Media shall be subject to a charge. -
Additional services
All Koller Media’s services that are not expressly settled by the agreed fee shall be paid for separately. -
Advance payment
Koller Media is entitled to demand advance payments to cover its own expenses. -
Part services
Koller Media is entitled to charge for part services. -
Unjustified withdrawal
In the event that the Client withdraws from his order in full or in part, without Koller Media being culpable of blatant gross negligence or wilful intent, Koller Media shall charge the agreed fee anyway. In this case, Koller Media must only make allowance for savings arising from purchases of goods and third party services that have not yet taken place. -
Price adjustment
In the event of contracts for an indefinite term and in the event of contracts with an automatic extension of the contractual term, Koller Media is entitled to undertake a price adjustment once a year, taking factors such as inflation, the consumer price index, the collective agreements concluded and similar external factors over which Koller Media has no influence into consideration.
In other respects, Koller Media is entitled to undertake a reasonable price adjustment for individual services, after the conclusion of the contract, if the costs of these services rise by more than 10 %, without Koller Media having an influence on this.
Consumers shall also be entitled to a reduction of the fee if the opposite conditions are present.
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Prices
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Payment
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Due date and payability
Koller Media’s invoices shall be due net, without any deductions, from the invoice date and must be paid within 14 days of the receipt of the invoice, unless otherwise agreed. -
Retention of title
Until payment in full by the Client, a retention of title in favour of Koller Media for the goods provided by the latter shall be deemed to be agreed. -
Prohibition of offsetting and retention
Entrepreneurs are not entitled to offset their own claims against claims of Koller Media, unless the Client’s claim has been acknowledged in writing by Koller Media or established in court. A right of retention in favour of entrepreneurs shall be excluded. -
Delayed payment
In the event of delayed payment, the relevant statutory interest between entrepreneurs must be paid for contracts with entrepreneurs, but at least 9 % per annum; for contracts with consumers, interest of 9 % per annum must be paid. The Client must bear all the costs and expenses associated with the collection of the claim, such as, in particular collection expenses or other costs necessary for appropriate legal action. -
Continued delayed payment
After unsuccessfully sending the Client a payment reminder, setting a grace period of at least 7 days, Koller Media may demand immediate payment for all services and partial services that have already been performed, including within the framework of other contracts concluded with the Client, and suspend the performance of services for which payment has not yet been received until the payment in full of all outstanding fees.
After the fruitless expiry of another week, Koller Media is entitled to withdraw from all the contracts and, in addition to the payment for the services that have already been provided, to demand compensation for lost profit. Thus, Koller Media is also entitled to discontinue services for which payment has already been made, insofar as savings result from the discontinuation of the service. In this case, Koller Media is entitled to offset the savings against the outstanding claims.
Irrespective of these options, Koller Media may, of course, also bring an action to court immediately after the expiry of the due date. -
Payment by instalment
Insofar as Koller Media and the Client conclude an instalment payment agreement, it shall be deemed to be a failure to meet the deadline in the event that just one instalment is not paid on-time.
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Due date and payability
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Confidentiality obligation and non-solicitation
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Confidentiality
The Client must keep secret all the sensitive information about Koller Media, its projects and its clients that is known to him and may not utilise this information for his own purposes. This provision shall continue to apply beyond the end of a contract. In the event of an infringement of this obligation, a penalty of € 25,000.00 per infringement must be paid. -
Non-solicitation
The Client may not poach any clients or employees of Koller Media. This provision shall continue to apply for three years after the end of a contract. In the event of an infringement of this obligation, a penalty of € 25,000.00 per infringement must be paid.
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Confidentiality
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Liability
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Warranty
The right to claim warranty shall be restricted to 6 months and the right of recourse to warranty to 12 months after delivery, for entrepreneurs. -
Obligation to report defects
After the delivery of services or after a request for an interim acceptance of a part service by Koller Media, the delivered services or services to be accepted must be accepted (“approved”) in writing or any defects must be reported in writing, within 14 days at the latest. In the event that the services are not accepted on time or in the event that the services are used in real conditions before this date, the services shall be deemed to be accepted by the Client.
Concealed defects that only come to light after the expiry of 14 days, but within 6 months of the delivery, must also be reported by entrepreneurs within 14 days of their discovery.
The entrepreneur’s defect report must describe the defect in detail and comprehensibly. In the event of defects that do not occur continuously, the exact times and conditions of the occurrence of the defect must be quoted.
In the event that the defects are not reported on-time by entrepreneurs, the assertion of warranty claims and claims for compensation and the right to rescission on the grounds of error, on the basis of the defects, shall be excluded.
Consumers shall also be requested, for the sake of easier verification, to check all the services or deliveries immediately and report any defects as soon as possible in writing, and to substantiate these. -
Rectification of defects
In the event of a punctual and justified notice of defects by the entrepreneur, the defects shall be rectified in an appropriate period, whereby the Client must make all the measures necessary for the investigation and the rectification of the defects possible for Koller Media.
Entrepreneurs shall only have the right to the improvement or replacement of the services at the discretion of Koller Media. Koller Media is entitled to refuse to improve or replace the service if these measures are impossible or if these measures are, on the one hand, associated with disproportionately high costs for Koller Media and, on the other hand, the defect does not constitute a significant restriction for the Client. Only in these cases shall the Client be entitled to a corresponding reduction of the price. -
Error, lesion beyond moiety
The right to rescission on the grounds of error and on account of lesion beyond moiety shall be excluded for entrepreneurs. -
Compensation
Claims for compensation by the Client, except in the case of personal injury, shall be excluded, unless they are based on the blatant gross negligence or wilful intent of Koller Media in the event of contracts with entrepreneurs or on its gross negligence or wilful intent in the event of contracts with consumers.
Claims for compensation by entrepreneurs shall expire six months from their awareness of the damages, and three years after the act of infringement in any case. -
Burden of proof
A reversal of the burden of proof to the detriment of Koller Media shall be excluded for contracts with entrepreneurs. The Client must provide proof, in particular, of the presence of the defect at the time of delivery, the time of the discovery of the defect, the punctuality of the notice of defects and the presence and degree of guilt.
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Warranty
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Premature termination for good cause
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Good cause
The parties are entitled to terminate the contract for good cause with immediate effect. Good cause shall be deemed to exist, in particular, if the other party continuously infringes essential provisions of the contract, in spite of a written warning, setting an appropriate fourteen day grace period for the rectification of the breach of contract, for reasons attributable to the latter party.
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Good cause
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Right of revocation for consumers (for individual printed products see XI.6.b. in particular!)
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Right of revocation
Consumers shall have the right, in distance selling and in the event of contracts concluded away from the business premises, to revoke the contract within fourteen days, without stating reasons. -
Revocation period
The revocation period shall amount to fourteen days- from the conclusion of the contract, in the event of a service agreement;
- or from the date on which the consumer or a third party designated by the latter, who is not the carrier, has taken possession of the goods, in the event of a contract for the delivery of goods;
- or from the date on which the consumer or a third party designated by the latter, who is not the carrier, has taken possession of the last goods, in the event of a contract for several goods that the consumer has ordered in a single order and that are delivered separately;
- or on the date on which the consumer or a third party designated by the latter, who is not the carrier, has taken possession of the last consignment or the last unit, in the event of a contract for the delivery of goods in several consignments or units;
- or from the date on which the consumer or a third party designated by the latter, who is not the carrier, has taken possession of the first goods, in the event of a contract for the regular delivery of goods over a fixed period.
For compliance with the revocation period, it shall be sufficient for consumers to send their communication about exercising the right of revocation before the expiry of the revocation period.
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Declaration of revocation
To exercise the right of revocation, consumers must inform Koller Media [Koller Media GmbH, Marienweg 8 (Arnsdorf district), 5112 Lamprechtshausen, office@fingerbook.com, Fax: 0043 (6274) 770088-6] of their decision to revoke this contract with a clear declaration (e.g. a letter sent by post, a fax or an e-mail). For this, consumers may use the enclosed sample revocation form, but this is not obligatory. -
Sample revocation form
A sample revocation form can be requested via e-mail at office@fingerbook.com. -
Consequences of revocation
If consumers revoke a contract, Koller Media must pay back all the payments that Koller Media has received from consumers, including the delivery costs (with the exception of additional costs arising from the consumer selecting a different type of delivery to standard delivery, the cheapest delivery option offered by Koller Media), immediately and no later than fourteen days from the date on which the communication of the revocation of this contract is received by Koller Media. For this repayment, Koller Media shall use the same means of payment that the consumer used in the original transaction, unless otherwise agreed with the consumer; on no account shall the consumer be charged for this repayment.
The consumer must send back or handover the goods to Koller Media immediately and, in any event, no later than fourteen days after the date on which the consumer informs Koller Media of the revocation of this contract. The term shall be deemed to be observed if the consumer sends off the goods before the expiry of the period of fourteen days.
Koller Media may refuse repayment until Koller Media has received the goods back or until the consumer has provided evidence that the consumer has sent back the goods, whichever is earlier.
The consumer shall bear the direct costs for returning the goods.
The consumer must only pay for a loss of value of the goods if this loss of value can be traced back to a handling of the goods that is not necessary for an examination of their quality, properties and functioning. -
Exclusion of the right of revocation
The consumer shall have no right of withdrawal in the case of distance selling contracts or contracts concluded away from the business premises about:- services if Koller Media – on the basis of an express request by the consumer and a confirmation by the consumer of the latter’s awareness of the loss of the right of withdrawal in the event of the complete fulfilment of the contract – has started to perform the service even before the expiry of the period for withdrawal and the service has been rendered in its entirety,
- goods that are produced according to customer specifications or clearly tailored to personal requirements,
- goods that have been inseparably mixed with other goods after their delivery, by virtue of their nature,
- audio or video recordings or computer software that are delivered in a sealed package, if their seal was removed after delivery,
- newspapers, periodicals or magazines, with the exception of subscription contracts relating to the delivery of such publications,
- the delivery of digital contents that are not saved on a physical data medium, if Koller Media – with the express consent of the consumer in connection with his acknowledgement of the loss of the right of withdrawal in the event of the premature start of fulfilment of the contract, and after the provision of a copy or a confirmation – has started the delivery even before the start of the period for withdrawal, and
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in the event of contracts relating urgent repair and maintenance work, in which the consumer has expressly invited
Koller Media to visit him to perform this work.
If, during such a visit, Koller Media performs other services that the consumer has not expressly requested, or if Koller Media delivers goods that are not absolutely required for the maintenance or repairs as spare parts, the consumer shall have the right of withdrawal with respect to these additional services or goods.
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Right of revocation
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Final provisions
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Place of fulfilment, transfer of risk
The place of fulfilment shall be the registered place of business of Koller Media. In the event that goods are dispatched, the risk shall always be transferred to the Client, as soon as Koller Media has handed over the goods to the carrier. -
Applicable law
Austrian law shall apply exclusively to the legal relations between the Client and Koller Media, to the exclusion of the international reference standards. The provisions of the UN Convention on Contracts for the Internal Sale of Goods shall not apply. -
Place of jurisdiction
The competent Austrian court in Oberdorf shall be the place of jurisdiction for all disputes between Koller Media and entrepreneurs. Koller Media shall, however, also be entitled to bring an action in Salzburg and in the general place of jurisdiction of the entrepreneur.
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Place of fulfilment, transfer of risk