PREAMBLE
A HIRSCH ARMBÄNDER GMBH (hereinafter referred to as "HIRSCH") is launching a Project regarding an extranet Website hereinafter referred to as “H-SAV AREA” to provide authorised watch retailers with an efficient platform to choose and order watch straps and to receive product news and other important information to assist in the provision of services they provide through a protected website extranet interface.
B The following Terms and Conditions of use shall apply to retailers’ access and use of H-SAV AREA.
Article 1 GENERAL
1.1 With a view to improving the commercial tools made available to assist its SAV network, HIRSCH has developed H-SAV AREA. Use of and access to H-SAV AREA is strictly limited to duly authorised retailers.
1.2 Access to the H-SAV AREA is entirely dependent on the continuation of their original authorised retailer arrangement entered into between headquarter and the authorised retailer and to the express acceptance of the following Terms and Conditions of use.
1.3 The Terms and Conditions set forth in this Agreement (the “Agreement”) apply to any retailer to whom access to H-SAV AREA has been granted, including HIRSCH personnel and authorised retailers together with their officers, employees and agents (hereinafter referred to together as the "retailer").
Article 2 USE
2.1 Use of H-SAV AREA is strictly reserved to retailers, as defined in Article 1, in compliance with instructions issued by HIRSCH from time to time.
a) Individual account profiles (“Account Profiles”) are created in the form of access codes and passwords and transmitted to retailers by HIRSCH thereby allowing access to and use of H-SAV AREA. All Account Profiles are strictly personal and may not be shared with any other party;
b) The retailer shall be liable for any operation, misuse, manipulation or any other act or omission performed under its Account Profile, including any unauthorised act undertaken by one of its officers, directors, employees, agents or any other third party who gains access to H-SAV AREA through use of the retailer’s Account Profile.
c) HIRSCH may terminate use of and access to H-SAV AREA and cancel retailer’s Account Profile if it reasonably believes that the retailer has violated or acted inconsistently with these Terms and Conditions, or violated the rights of HIRSCH or any third party, or for any reason with or without notice to them.
d) The retailer further agrees to:
(i) notify the HIRSCH administrator responsible for managing retailer’s Account Profile immediately in the event that it becomes aware of any unauthorized use of the retailer’s Account Profile, including security breaches of whatever nature (for example circumvention or hacking); (ii) ensure that computer terminals have restricted access and that each retailer logs out correctly at the end of each session from H-SAV AREA.
e) The retailer acknowledges that all orders via H-SAV AREA will be handled according to HIRSCH’s Terms of Trade in its recent version, which will be available on the H-SAV AREA homepage at all times. HIRSCH reserves the right to update or modify the Terms of Trade from time to time without prior notice to the retailer or any other party. In this event, the modified Terms of Trade will take effect for all retailers and their employees on or after the date shown on the posting; consequently retailers continued use of the H-SAV AREA following any such change constitutes their agreement to be bound by the Terms as changed. Retailers should therefore consult and will ensure that its employees consult the Terms regularly.
Article 3 USE OF RETAILERS’ DATA
3.1 Retailers hereby expressly consent to the collection by HIRSCH of personal information and server log data (“Data”) relating to the use of H-SAV AREA, such Data being automatically provided to HIRSCH through tracking software (including cookies) when connecting to H-SAV AREA and upon registration for use of the system.
3.2 HIRSCH will use this Data in particular, to manage their orders and accounts, to improve H-SAV AREA services and to fulfil any requests from retailers, and/or the headquarter to respond to any questions or comments they may choose to submit.
3.3 HIRSCH also uses this Data to survey use of H-SAV AREA and prevent abuse of the system.
3.4 Furthermore, HIRSCH may use personal information for normal business purposes and as a marketing tool to advise retailers of new products and/or events in relation to HIRSCH.
3.5 HIRSCH will take reasonable steps to store such Data securely although it will be made accessible for joint use by HIRSCH and affiliated companies’ personnel. HIRSCH does not otherwise share or disclose any such Data with third parties unless such disclosure is required by law, a court decision or its legal advisors.
Article 4 INTELLECTUAL PROPERTY RIGHTS
4.1 Any copying, reproduction, circulation or distribution of images or other content contained in H-SAV AREA to unauthorised third parties is expressly prohibited.
4.2 Copyright Notice. Retailers should assume all visual content on or available from H-SAV AREA is either licensed for use by or Copyright © HIRSCH or its affiliated companies, all rights reserved. As such all content is protected under national laws and international treaty provisions unless otherwise noted. Retailers may not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, report or otherwise use any of the content on any other support or in
any way whatsoever unless such use is exclusively for its own internal use in relation to the services it provides.
4.3 Design rights. All products shown on H-SAV AREA are registered and unregistered designs belonging to HIRSCH and/or to their affiliated companies.
4.4 Trademark Notice. The trademarks, logos, product names and service marks contained in the H-SAV AREA are registered and unregistered trademarks of HIRSCH or its affiliates. Nothing contained in H-SAV AREA should be construed as granting, by implication or otherwise, any licence or right to use any trademark contained in H-SAV AREA. Misuse of any trademark contained in H-SAV AREA or any other material contained in H-SAV AREA is strictly prohibited.
Article 5 LIABILITY
5.1 Retailers understand and agree that non-compliance with the Terms and Conditions could cause irreparable damage to HIRSCH and/or affiliated companies.
5.2 Consequently, the retailer shall be liable for any act or omission in violation of the present Terms and Conditions performed by its officers, directors, employees, agents and/or any other third party to whom the retailer has granted access in violation of the present Terms. The retailer agrees to fully indemnify, defend and hold HIRSCH, its affiliated companies, agents, successors and assigns harmless from and against any loss, cost, damage or expense arising by reason of a breach
by the retailer, or any non-compliance with these Terms by its officers, directors, employees, agents and/or any other third party to whom access to H-SAV AREA has been granted. The terms of this Article shall survive termination.
Article 6 RETAILER OBLIGATIONS
6.1 The retailer shall strictly adhere to all instructions received from time to time from HIRSCH concerning use of H-SAV AREA.
6.2 The retailers hereby undertake to keep Account Profiles secret and secure at all times.
Article 7 CONFIDENTIALITY
7.1 The retailer represents and guarantees that it will not disclose to any third party or use for its own purposes or purposes of others, other than as set out herein, either during or following termination of use, any information or documents relating to HSAV AREA. It is understood, that this obligation ALSO applies to any technical, business, advertising, financial, legal or other information of any nature whatsoever.
7.2 No material, document, or any part thereof related to H-SAV AREA may be reproduced, duplicated, republished, posted, copied, transmitted, re-engineered by any means of whatsoever nature, or used, shared or distributed to third parties in any way whatsoever other than as stipulated herein. The retailer further agrees not to modify the software in any manner or form, or to use modified versions of the software.
7.3 Articles 7.1 and 7.2 shall not apply to information that is: i) available to the public other than by a breach of these Terms and Conditions; ii) rightfully received from a third party not in breach of an obligation of confidentiality; iii) independently developed by the retailer without access to confidential information as evidenced by the retailer's written records; iv) known to the retailer prior to the time of disclosure as evidenced by the retailer's pre-disclosure written records; or v) produced in compliance with applicable law or a court order, provided HIRSCH is given reasonable notice of such law order and an opportunity to attempt to preclude or limit such production.
7.4 The Parties acknowledge that any violation of the foregoing could cause irreparable harm to HIRSCH, which would not be adequately compensated by monetary damages. In addition to any other relief which HIRSCH might seek, the retailer agrees that injunctive relief shall be available to HIRSCH in the event that any such violation or threatened violation is likely to occur and/or has already occurred.
7.5 All computer readable files, including all accessory documents such as, but not limited to circular letters, specific instructions accessible from the H-SAV AREA or forwarded to the retailer under its control in whatever form are and remain the property of HIRSCH and/or affiliated companies at all times and, as such, are protected by international and national copyright legislation. The trademarks, logos, models and designs incorporated in these files including any related documents are also the property of HIRSCH and/or affiliated companies.
7.6 In the event that the retailer’s right to access and use H-SAV AREA is terminated any documentation, data reflecting any confidential information, including any documents forwarded by HIRSCH, in any form whatsoever, shall be promptly returned to HIRSCH and any computer readable copies deleted from the retailer's computer system. The retailer shall provide written confirmation that the deletion of such information has been effected upon request from HIRSCH.
Article 8 LIMITATION OF LIABILITY
8.1 The H-SAV AREA is provided “as is” and HIRSCH does not warrant that the H-SAV AREA service will be uninterrupted, error free or completely secure. The retailer hereby agrees that any modification, suspension or discontinuance (whether temporary or permanent) of the H-SAV AREA by HIRSCH for any reason whatsoever shall not give rise to any claim for damages or other compensation of any nature by or on behalf of the retailer.
8.2 Furthermore, the retailer recognises the global nature and inherent characteristics of the Internet which may also affect the H-SAV AREA extranet. Consequently, HIRSCH shall not be liable for any damage or loss resulting from delays, corruption of data, non-deliveries, mis-deliveries, business or service interruptions. In no event, HIRSCH shall be liable for any indirect, incidental, special, or consequential damages, or for any loss of profits or loss of revenue resulting from the use of HSAV AREA.
8.3 The limitation of liability provided herein shall inure to the benefit of HIRSCH or affiliated companies, customers, officers, directors, attorneys, employees and agents and apply whether in an action of contract or through negligence arising out of or in connection with the use or performance available from the H-SAV AREA.
8.4 HIRSCH shall not incur liability for any form of damages either for gross negligence or wilful misconduct. Furthermore, HIRSCH shall not incur liability for any other form of negligence unless such liability is based in contract between the Parties and was predictable and where such negligence represents a material breach of an essential obligation affecting the fulfilment of the business relationship between the Parties.
Article 9 E-COMMERCE-LAW
The application of Chapter 4 (§§ 9-12) of Austrian E-Commerce Law (ECommerce- Gesetz) is explicitly suspended.
Article 10 INDEPENDENT CONTRACTOR
Nothing in these Terms and Conditions shall be deemed to create between HIRSCH and the retailer a partnership, joint venture, association, employment relationship or any other relationship.
Article 11 TERMINATION
10.1 Either Party may terminate the Agreement upon seven (7) days notice to the other Party, such notice to be sent to the other party by registered mail or courier.
10.2 The right of the retailer to use H-SAV AREA and services will automatically terminate following any violation or attempted violation of the foregoing Terms and Conditions.
10.3 Furthermore if HIRSCH reasonably believes, at its entire discretion, that a retailer has violated or acted inconsistently with these Terms in any way or violated the rights of HIRSCH or any third party, or for any reason whatsoever, HIRSCH shall be entitled to terminate access to H-SAV AREA immediately. The terms of Article 7 shall survive the termination of this Agreement.
10.4 In case of termination or limitation of retailer’s business relationship with the headquarter for any reason whatsoever, HIRSCH shall terminate or suspend the retailer’s use of and access to H-SAV AREA immediately.
10.5 Upon termination, the retailer’s permission to use H-SAV AREA will automatically expire and all retailer Account Profiles to H-SAV AREA will be cancelled.
10.6 Termination of retailer’s right to use H-SAV AREA for any reason whatsoever by HIRSCH shall not give rise to any right of indemnity of whatsoever nature to the retailer from HIRSCH.
Article 12 TRANSFERABILITY
The retailer shall have no right to transfer and/or to assign any of its rights or obligations under these Terms & Conditions without HIRSCH’s prior written consent.
Article 13 COSTS
12.1 No fees will be invoiced to the retailer for the use of and access to H-SAV AREA, unless both Parties agree upon the payment by the retailer of such fees in writing.
12.2 The retailer agrees that any costs, related to the installation and use of H-SAV AREA by the retailer including, but not limited to hardware, software and all internet connection charges payable to the retailer’s service provider and/or telephone company, shall be borne exclusively by the retailer.
12.3 All prices displayed in H-SAV AREA are for information purposes only. RETAILER agrees that the applicable price is the current price of products and components which are valid prices at the time the ordered products are dispatched by HIRSCH. HIRSCH reserve the right to modify prices at any time.
12.4 RETAILER agrees that backorders are neither binding nor accepted orders for HIRSCH. They only correspond to the retailer’s wished component list. Delivery is subject to acceptance by HIRSCH and product and component availability.
12.5 Delivery dates provided by HIRSCH for Products ordered are best estimate indications of delivery date and not firm dates.
Article 14 MISCELLANEOUS
13.1 Modifications to Terms & Conditions of Use. These Terms & Conditions will be available on the H-SAV AREA at all times. HIRSCH reserves the right to update or modify them from time to time without prior notice to the retailer or any other party. In this event, the modified Terms & Conditions will take effect for all retailers and their employees on or after the date shown on the posting; consequently retailers continued use of the H-SAV AREA following any such change constitutes their agreement to be bound by the Terms as changed. Retailers should therefore consult and will ensure that its employees consult the Terms regularly.
Article 15 APPLICABLE LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of Austria, without reference to principles of conflict of law. In the event that any dispute arises out of these Terms, the Parties hereto agree to meet in good faith in order to resolve the dispute amicably. Failing amicable resolution, any action that may be brought hereunder will be submitted to the competent Court of Klagenfurt which shall have exclusive jurisdiction. The Parties recognize the global nature of the Internet, and the retailer specifically agrees to comply with all local rules regarding online conduct and acceptable content including, without limitation, all applicable laws regarding the transmission of technical data exported to or from Austria or the country in which the retailer resides.
HIRSCH Armbänder GmbH, June 2007