1.1 These General Terms & Conditions (hereinafter “GTC”), of the Modis LLC (hereinafter “Modis”), are the basis of any and all offers, deliveries and services of Modis. Modis concludes any and all contracts solely on the basis of these GTC. Contradicting terms of conditions of other parties (business partners) are only relevant if Modis has so accepted in writing beforehand.
1.2 The valid version of these GTC is currently published on Modis’ website modis.io, where it can be read and printed.
1.3 This GTC are valid towards all contractual partners of Modis (“customers”), hence towards enterprises as well as towards consumers. An enterprise is he who runs a business (sec. 1 Austrian Commercial Code). For the scope of these GTC, an enterprise is any permanent organization of economic activity, even if not focused on making a profit. Public law entities, educational institutions, and universities are always considered as enterprises. He to whom this does not apply is a consumer by definition of the Austrian Consumer Protection Act (”KSchG”). A consumer is any natural person who enters into a transaction for a purpose which is neither commercial nor connected to a self-employed business activity.
1.4 Modis concludes contracts exclusively with fully contractually capable natural persons or respective legal entities.
1.5 If an order has been placed by a person who does not meet these prerequisites (1.4), Modis is entitled to call the contract void within a reasonable time period after the said defect has been perceived by Modis.
2. Offer and Conclusion of the Contract
2.1 All offers of Modis are non-binding. A contract binding for Modis is only concluded by the following actions and/or declarations by Modis:
- dispatch of the written order confirmation, or
- dispatch of the ordered goods, or
- providing the ordered service.
2.2 Modis reserves the right to refuse acceptance of any order without reasons to be given.
2.3 In case Modis cannot accept an order from a customer, for example, because the ordered product or service is not available, Modis is obliged to both inform the customer without any delay and return any payments already made. Same applies if the offer of a customer is not accepted by Modis (sec. 5i Austrian Consumer Protection Act). This obligation does not apply if the processing of the order is obstructed by a technical defect (such as mail server crash etc.).
3. Right of Withdrawal and Return Policy (Consumers Only)
3.1 A consumer can call a contract entered into over distance (“distance contract”) and/or a declaration regarding distance contract void within seven working days – whereby Saturday does not count as a working day. Regarding contracts for the supply of goods, the avoidance period starts on the date of receipt by the consumer. Regarding service-contracts, the avoidance period starts on the date the contract has been signed. It is sufficient if the declaration of avoidance is sent within the avoidance period (date of postmark). The avoidance of the contract must be executed by sending a written notice of avoidance as well as in compliance with the process of returning goods (set forth in sec. 3.6 below). Such notices of avoidance must be sent to:
1887 North Bayshore Dr.
Coos Bay, OR 97420
Phone: +1 458 2013070
3.2 The risks of return and the return delivery costs (postage, packing etc.) shall be borne by the consumer.
3.3 If the consumer calls a contract void in accordance with these regulations (sec. 5e Consumer Protection Act), then (a) Modis has to refund the payments made by the consumer and to compensate for the necessary and useful expenses made by the consumer as and when (b) the consumer fulfills his obligation to return the services received and to pay the seller (Modis) a reasonable fee for the use, including a compensation for the meanwhile occurred reduction of the value of the goods and services. Obligations to reimburse payments must be fulfilled within thirty days. For the consumer this period starts with the dispatch of the goods or the demand of return, for the seller (Modis) this period starts upon receipt. A deterioration of the goods due to damage caused during the return shipment can be avoided by the consumer by using packaging suitable for transportation (e.g. the original shipment packaging or equally durable alternate shipment packaging). A deterioration of the goods may also result if the original product packaging is no longer available. In the case of loss of the original product packaging, the seller (Modis) reserves the right to compensation for the depreciation caused by the loss of the original product packaging. These costs can be avoided by using original product packaging and original shipment packaging in case of return shipment.
3.4 It is a prerequisite for the refunding of the purchase price that the returned goods are undamaged and that the returned shipment has been fully paid for. The packaging and shipment cost will not be refunded.
3.5 The following goods are excluded from the right of avoidance stipulated above:
- Goods produced according to consumer specifications, goods tailored to specific individual consumer preferences and goods which are of such nature that they are not suitable for return (e.g. single electronic components, such as microcontrollers and chips),
- goods previously marked as not reversible/not returnable, quickly perishable goods and goods with an expiration date about to expire (sec. 5e Austrian Consumer Protection Act);
- Unsealed software and/or already activated software (the latter especially if delivered without data carrier), audio- and video records;
- Services, for which the implementation starts within seven working days (sec. 5e para. 2 first sentence of the Austrian Consumer Protection Act) from the signing date (sec. 5f subsec. 1 Austrian Consumer Protection Act);
- Goods or services whose price is subject to the developments on the financial markets, over which the company has no influence, (sec. 5 f no. 2 Consumer Protection Act);
4.0 RMA, Return Material Approval
The customer is obliged to apply for an RMA number in writing before returning a product purchased from Modis. Said RMA number must be stated on the package in a legibly and prominent way. Unannounced or not adequately labeled return shipments will – without exception – not be accepted. Any costs incurred thereby shall be borne by the sender.
5. Precondition of Availability
If a service or good already ordered from Modis turns out not to be available any longer for any reason whatsoever, Modis shall be entitled, to either offer goods or services of equivalent quality and price or to call the contract void. Modis’ offer of a replacement or a withdrawal will be issued without undue delay, at the latest within three working days after receipt of order. Said offers shall be issued without undue delay, at the latest within three days after receipt of such order. In case of said avoidance of a contract, Modis will refund the payment immediately.
6.1 Unless explicitly stated otherwise, any and all prices listed by Modis exclude applicable taxes and fees.
6.2 In case of essentially erroneous or essentially incomplete information on products or prices issued by Modis, Modis will notify the customer immediately after recognizing such error or incompleteness. Subsequently, both contracting parties have the right to reaffirm or void the contract within fourteen days. In case of said avoidance of a contract, the last sentence of sec 4. above applies.
7. Terms of Payment
7.1 If not stated otherwise in the description of a certain product, Modis offers the following advance payment options: wire transfer and credit card.
7.2 Payments are only considered made at the time of receipt (value date) on the bank account of Modis and have to be carried out without any deductions for Modis. The ordered goods or services will not be provided before receipt of full payment by Modis.
7.3 Additional costs, such as taxes, fees, duties etc. might incur for deliveries to countries outside the European Union.
7.4 If payment by cash advance was stipulated, payment is due upon conclusion of the contract.
7.5 If payment by credit card was stipulated, the credit card account will be charged as the purchase order is finished.
8. Supply, Transport, Delay of Acceptance
8.1 The goods will be delivered to the delivery address specified by the customer (see section 11.2).
8.2 With handing over the goods to the carrier, costs, and risk are transferred to the customer. Delivery dates stated by Modis are not binding. All shipments are insured against damage or loss.
8.3 If the customer has not accepted the goods as agreed upon (delayed acceptance), and a reasonable respite has elapsed without orderly acceptance, Modis is entitled to charge any cost caused thereby to the customer. Furthermore, in such case, Modis has the choice (i) either to insist on the fulfillment of the contract, or (ii) to call the contract void subject to a period of grace of at least two weeks and to then use the goods otherwise.
9. Retention of Title
Delivered goods remain property of Modis until full payment has been received. Same applies to goods replaced by Modis in the context of warranty fulfillment.
10. Warranty & Compensation for Damages
10.1 If a purchased good is defective, statutory Austrian provisions apply subject to the following deviations:
10.1.1 With regard to transactions concluded with enterprises:
- Any and all liability of Modis (compensation for damages, warranty etc.) for minor defects and/or shortcomings is excluded.
- In case of warranty to be fulfilled, Modis has the right to choose the remedies of warranty (repair, replacement, price reduction, conversion, etc.).
- For new goods, the warranty period is one year at the most.
- The goods delivered are deemed approved by the customer if the customer does not issue a written notice of the defect within fourteen days from the delivery (Examination and Notice of Non-Conformity pursuant to sec. 377 Austrian Commercial Code);
- in case of delivery of used goods, any and all liability of Modis (warranty and/or compensation for damages) for defects and consequential damages are excluded;
- Modis offers used goods only as is;
- the statute of limitations for warranty claims and/or claims for damages by compensation, deliveries, improvement or improvement efforts will not be interrupted by correction or correction attempts;
- regarding single electronic components or products in phase out, warranty of any kind is excluded.
10.1.2 If the customer is a consumer,
- the warranty period for new goods is two years from dispatch of the goods at the most;
- the warranty period for used goods is one year from dispatch of the goods at the most;
- in case the goods show any obvious transport damages, the consumer is obliged to note these immediately to the delivery agent and to Modis.
10.2 Possible repairs are carried out directly by the manufacturer. Any communication regarding repairs or replacement has to be conducted solely via Modis.
10.3 Only deviations from the delivered to the stipulated in the moment of delivery are considered defects or shortcomings. Damages, malfunctions, and defects etc. of the delivered goods, caused due to improper use, above average use, attempts of repair by the consumer or normal wear and tear due to normal use, do not fall within the scope of warranty; for such damages, faults and defects etc. of the delivered goods all liability of Modis is excluded.
10.4 The consumer is obliged to adequately secure the already existing data on the computer systems before installing any software whatsoever purchased from Modis. Modis is not liable for any loss of data.
11.1 Liability under the Product Liability Act (“Produkthaftungsgesetz”) remains unaffected.
11.2 With regard to property damage (damage of things), any possible liability of Modis for infringement of essential contractual obligations (cardinal duty) is limited to the foreseeable typical and average damage.
11.3 As far as Modis violates non-essential contractual obligations only with slight negligence, the obligation to pay compensation is limited to the contract value.
12. Data Protection and Change of Address
12.1 The customer agrees that the personal data included in the purchase agreement is stored and processed by Modis in fulfillment of the contract within the borders of data protection law.
12.2 As long as the contractual transaction is not fulfilled by both parties, the customer is obliged to inform Modis immediately about any changes of his core data (address, etc.). In case of omission of such information, the data recently provided to Modis by the customer is deemed valid. Modis is not liable for damages or losses caused by the customer’s omission to the timely inform Modis about a data change.
13. Choice of Law and Forum, Contract Language, Place of Fulfillment and Final Provisions
13.1 The law of the Republic of Austria, excluding the rules on the conflict of laws, is applicable to all legal relationships between the contracting parties. The UN Convention on Contracts for the International Sale of Goods (UNCITRAL) is not applicable and is expressly excluded.
13.2 The contract language for contracts with (i) customers seated in German-speaking countries and/or (ii) German-speaking customers is German. Regarding all other contracts, the contract language is English.
13.3 Unless stipulated otherwise by mandatory law, Modis’ headquarter office in Austria is both, place of delivery and legal venue regarding any and all claims in connection with contracts concluded by Modis including legal disputes on whether such contract has been validly concluded at all.
13.4 If any provision of the contract between the customer and Modis including these terms and conditions are or will be completely or partially invalid or should contain void provisions, the validity of the remaining provisions shall not be affected.
14. Customer Information
Contractual partner is:
1887 North Bayshore Dr.
Coos Bay, OR 97420
CEO: Richard Lowe