Terms of use

Terms and Conditions of Use
of EV Group Europe & Asia/Pacific GmbH
(„EV Group“)
as of 1 March 2009

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1. Scope of Application

1.1 The use of the website www.evgtshop.com and the offered services referred to in Clause 2 („Website“) are subject to these Terms and Conditions of Use. By using the Website the user agrees with and fully accepts these Terms and Conditions of Use.

1.2 The Terms and Conditions of Use also contain the general terms and condi-tions for contracts concluded in the webshop of the Website in addition to the provisions of the “Standard Terms and Conditions for Equipment” or the “Standard Terms and Conditions for Spare Parts” (“Terms and Conditions of EV Group”), as applicable. The Terms and Conditions of Use apply in addition to the respective Terms and Conditions of EV Group to any contract con-cluded via the Website between EV Group and the user. By accepting the Terms and Conditions of Use at the time of registration the Terms and Conditions of Use become binding part of the contract.

1.3 The Terms and Conditions of Use may be modified. EV Group will announce any modifications of the Terms and Conditions of Use immediately on the Website. Any further use of the Website requires acceptance of the modified Terms and Conditions of Use by the user. The user is obliged to review the Terms and Conditions of Use for any modifications made periodically.

1.4 EV Group herewith explicitly contradicts any general terms and conditions or any further conditions of the user; such conditions are not part of any contract concluded via the Website between EV Group and the user. Only the respective Terms and Conditions of EV Group and these Terms and Conditions of Use shall apply to contracts between EV Group and the user. Any tacit accep-tance of general terms and conditions or any further conditions of the user by EV Group’s accepting an order of the user or by any other act of EV Group shall be explicitly excluded.

2. Services

2.1 The Website is in English and German. The languages of the Website can be changed at any time. In case of any discrepancy the English language shall prevail.

2.2 On the Website EV Group offers information about its products and software. This information shall assist the user by giving information on the range of products of EV Group.

2.3 The Website includes a webshop. In the webshop the user is able to order various products by online-order. The contract only becomes effective upon acceptance by EV Group.

2.4 The webshop also grants the opportunity to buy designated products in an online-auction by submitting a bid for such product. The contract only be-comes effective upon acceptance by EV Group of the bid of the highest bidder after lapse of the bid period.

3. Registration, Password

3.1 In principle a registration is necessary for the use of the Website. Only basic information about the products is freely accessible without registration. EV Group reserves its right to submit any such freely accessible area of the Website to a registration duty.

3.2 For registration only entrepreneurs within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz – KSchG) are permitted who have their corporate seat in one of the countries listed on the registration page in the category “Country”.

3.3 The user has to register with a user name and a password chosen by the user. The user has no right to receive a registration. The user is obliged to provide correct information upon the registration and to inform EV Group on any later changes immediately. The user shall procure that e-mails which are sent to the e-mail address designated by the user, are in fact delivered to the user.

3.4 EV Group reserves the right at any time to withdraw access of the user by closing the user account, without need to give any reason. In particular the withdrawal of access is possible if the user provided incorrect data during the registration process, if the user breached these Terms and Conditions of Use, in case of violation of obligations in connection with the registration data, in case of violation of any law or morality upon registration or use of the Website, including but not limited to storage of illegal or immoral informations, violation of copy rights, trade marks or patents, usage of viruses or other computer programs that are dangerous or destructive for the Website or computer programs of other user („malware“) and use of sniper-software. In case of any illegal use EV Group reserves its rights, in particular claims of damages or penal charge.

3.5 The user account grants the user the possibility to examine data (personal data, delivery address), to review the order status, to change the password and to review contracts and product bids. The user is entitled to change his personal data at any time. The user is not entitled to use the user account of any third party without prior explicit consent of such third party.

3.6 The user shall procure that he will access the Website only via the interface provided for that purpose by EV Group. In case an illegal access to the Website becomes apparent EV Group is entitled to immediately withdraw the user account. In case of any illegal use EV Group reserves its rights, in particular claims of damages and penal charges.

3.7 The user shall procure that the user data is not accessible to third parties. The user is liable for all orders submitted and for any other activity of his user ac-count. EV Group is not liable for damages resulting from the use of the user account by third parties with or without knowledge of the user. The user shall indemnify and hold harmless EV Group for any and all damages that occur as a result of the use of the user account by unauthorized third parties. In particular the user shall be liable that only authorized persons within the company use the webshop. The user is obliged to leave the password protected area of the Website only by signing out. In case the user receives knowledge that third parties use the user data illegally, the user is obliged to inform EV Group im-mediately by written notice, also by email in advance. Upon such information EV Group will lock the user account. The release of such lock will only occur after separate instruction by the user.

3.8 The user shall be entitled at any time to request a cancellation of his user ac-count by EV Group, unless such cancellation has an effect on the performance of pending contracts.

4. Webshop

4.1 On the Website EV Group makes available a webshop. In order to make use of the webshop, the user must be an entrepreneur within the meaning of the Austrian Consumer Protection Act. Consumers within the meaning of the Austrian Consumer Protection Act are excluded from the use of the webshop. In case during the performance of a contract it turns out that a user is a consumer no contract shall have come into existence and any contract will be automatically rescinded retroactively (ex tunc).

4.2 The products offered in the webshop are demo-equipment, used equipment, new equipment,used spare parts and Aligner, which are offerd as “Aligner Special Offer”. The new equipment is a selection of EV Group’s products for the webshop. Furthermore products of other producers are offered in the web-shop. The products of other producers are listed in the webshop under the re-spective company name. Some of the products of other producers can not be purchased via the webshop. For such products the user needs to issue a spe-cific request. In such case the user will receive information about the further conditions of the purchase contract, including but not limited to the price of the product.

4.3 The products offered in the webshop constitute non-binding requests by EV Group that the user make an offer to EV Group for the purchase of such products by submitting an order. Even though EV Group attempts to give up-to-date information on the Website, EV Group makes no warranty that the of-fered products are still available at the time when the user submits his order to EV Group. Orders of the user are only deemed to be accepted once EV Group has explicitly accepted such order by a declaration of acceptance. The ac-knowledgement of receipt of the order of the user shall not constitute a declaration of acceptance.

4.4 For products of the category “Aligner Special Offer” the user can also himself issue an offer of EV Group in the webshop. This offer of EV Group is effective and binding for EV Group for a time period of 30 days from the date the user has issued such offer. An offer of EV Group accepted by the user within this time period will come into effect with the conditions contained in such offer of EV Group. In particular a change of the price by EV Group due to a change in current exchange rates is not possible. During the time period of 30 days the offer of EV Group will appear in “My account” and can be accessed by the user at any time. The user can expand or reduce the offer of EV Group by adding or deleting selectable accessory. The user can also delete the offer from “My account”. After the lapse of the effectiveness the offer of EV Group will automatically be deleted from “My account”. Each offer of EV Group is only valid for one piece of a certain product. If the user intends to receive an offer of EV Group for more pieces of a certain product he has to issue a sepa-rate offer for each product.

5. Conclusion of Contract via the Webshop

5.1 Upon registration on the Website the user has the possibility to choose among the products offered in the webshop. The product site contains details on the main features of the product. In case of demo-equipment, used equipment and used spare parts EV Group grants a warranty of six months for all parts, excluding installation (“Used with limited warranty”). The warranty for some specifically marked used products is fully excluded (“Used without warranty”).

5.2 A product offered can be ordered by the user immediately. Products of the category “Aligner Special Offer” can also be ordered by accepting a valid offer of EV Group issued by the user himself. Ordered products appear in the pur-chase basket of the user. Products that are marked as “product for sale at auction” can be purchased by making a product bid in the webshop auction. The minimum offer value in case of any bid is EUR 200.00 (USD 250.00). Products for sale at auction can also be purchased immediately for the “buy it now”-price.

5.3 The user is able to review the ordered products after he has placed his order in the purchase basket. The user also has the possibility to review his order and to directly change the details of his order. By sending off the order the user submits a binding offer to EV Group for the purchase of the selected product (binding offer of the user to EV Group). Immediately thereafter the user receives an acknowledgement of receipt of his order to his email-address. The contract only becomes effective by a separate declaration of ac-ceptance by EV Group. Such declaration of acceptance, also called “order confirmation”, will be made at the latest within 14 days upon sending off the acknowledgement of receipt, otherwise the order of the user is deemed to be rejected. The submitted orders of the user may be found in the user account “My account” and can be inspected at any time.

5.4 In case of products which are designated as “product for sale at auction”, the user has the possibility to make a product bid. Product bids already made can be inspected at the product site. After making a product bid the user may find such bid in the user account “My account”. The possibility to make a product bid ends at the date specified at the product site, at 12 o’clock CET. The con-tract will be awarded to such user who has given the highest product bid at that moment. The contract shall only become effective upon separate declara-tion of acceptance by EV Group. The use of sniper-software is explicitly prohibited.

5.5 The respective Terms and Conditions of EV Group apply in addition to these Terms and Conditions of Use. In particular the provisions of the Terms and Conditions of EV Group on the scope of delivery, transfer of risk, warranty, de-lay, notice of defects, retention of title and liability shall apply.

5.6 Users from Germany, Japan and the United States of America (USA) explicitly agree to the transfer of the whole contract to the subsidiary company of EV Group in the particular country:

Germany: EV Group E. Thallner GmbH, Hartham 7, D-94152 Neuhaus; Japan: EV Group Japan KK, 1F Kasho Bldg., 3014-2 Shinohara-cho, Kohoku-ku, Yokohama-shi, Kanagawa 222-0026, Japan; USA: EV Group Inc., 7700 South River Parkway, 85284 Tempe, Arizona, USA.

5.7 EV Group shall not be bound or liable in any manner for any agreement, rep-resentation or warranty made by any staff member of EV Group which goes beyond the written contract.

6. Prices and Payment / Delivery and Service

6.1 Unless stated differently, the prices indicated are net prices excluding any value added tax, including package, EXW (“Ex Works”) St Florian am Inn (according to Incoterms 2000), i.e. in particular excluding costs for transport, transport insurance, customs duties, import taxes, eventual sales taxes, discharge and installation. Any and all such costs shall always be borne by the user. The prices are only applicable for purchase in the webshop.

6.2 Euro (EUR) is the basis currency. All prices are alternatively also quoted in US-Dollar (USD) and Japanese Yen (JPY). EV Group does not guarantee any price in US-Dollar and Japanese Yen (JPY). The conversion rate of the day at the time of submitting the order by the user shall apply. The daily conversion rate is published in the webshop.

6.3 Unless stated differently, all invoices are due and payable immediately after receipt of the invoice. All payments have to be made either in advance or by credit card. For payments by credit card a maximum limit of EUR 10,000.00 (USD 10,000.00) applies. In case of higher amounts only payment in advance will be accepted. Payment will only be deemed to be effected once EV Group has received the money. In case the bank or credit institution of the user does not release the payment EV Group is entitled to rescind the contract after having granted a period of grace of 14 days. Payments for products of the category “Aligner Special Offer” have to be made by the user in accordance with the payment instructions as contained in the respective offer of EV Group. In case of direct orders without any preceding offer the payment instructions will be set out by EV Group during the order process.

6.4 Unless agreed differently, delivery is made EXW (“Ex Works”) St. Florian am Inn according to Incoterms 2000. The delivery only covers the product itself. The delivery time will be stated by EV Group in the declaration of acceptance. The delivery time stated in the declaration of acceptance is the standard lead time. Unless agreed differently, the delivery term starts with the date of receipt of payment by EV Group. Installation and training are not covered. In some cases the user has the possibility to conclude with EV Group a contract on an additional service-package (installation, training). The costs for the additional service-package are due and payable at the same time as the price of the product. Generally the provisions of the Terms and Conditions of EV Group on installation, training and support are not applicable for contracts concluded via the webshop. Only in case of conclusion of an additional service-package the provisions of the Terms and Conditions of EV Group on installation, training and support are also applicable for the services of such additional service-package.

6.5 Delivery shall be effected according to the delivery form chosen by the user with notification of a customer number of a parcel delivery company and shall be at the sole risk and cost of the user to the delivery address specified in the order. The delivery address can be changed by the user before submitting an order or making a product bid and may be reviewed at any time under the section personal data in “My account”.

6.6 The user has the possibility to conclude with EV Group a contract on an addi-tional shipping and insurance package. The contents and the costs of such additional shipping and insurance package can be inspected on the Website or will be notified by e-mail upon request. The costs of the additional shipping and insurance package shall be due and payable at the same time as the price of the product. The additional shipping and insurance package does not include costs for customs duties, taxes and other duties and dues.

7. Intellectual Property

7.1 All content on this Website, including but not limited to design, text, graphics, photos, other files, and their selection and arrangement in form of the content constitute intellectual property of EV Group.

7.2 The content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without EV Group's prior written approval.

7.3 All trademarks on the Website are trademarks or registered trademarks of EV Group and may not be copied, imitated, or used, in whole or in part, without the prior written approval of EV Group. All page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of EV Group, and may not be copied, imitated, or used, in whole or in part, without the prior written approval of EV Group. Other trademarks, registered trademarks, product names, and company names or logos displayed on the Website are the property of their respective owners and are subject to the same restrictions.

7.4 EV Group's products and processes are covered by one or more patents or other intellectual property rights and are subject to other trade secret and proprietary rights. EV Group reserves all such rights. No transfer or grant of rights under any patent or any other intellectual property right is made or is to be implied by any provision of these Terms and Conditions of Use. The user agrees not to infringe upon such rights or decompile, reverse engineer, or disassem-ble any of EV Group's products or processes.

7.5 Besides the explicitly granted rights in these Terms and Conditions of Use or other rights explicitly granted EV Group does not grant any further rights to the user, especially on the firm name and on intellectual property rights such as patents, design or trade marks.

8. Data Protection

8.1 EV Group will collect, use or disclose personal data supplied by the user online only for the purposes disclosed to the user, unless the collection, use or disclosure:

- is for any additional purpose that is directly related to the original purpose for which the personal data was collected,
- is necessary to prepare, negotiate and perform a contract with the user,
- is required by law or the competent governmental or judicial authorities,
- is necessary to establish or preserve a legal claim or defense,
- is necessary to prevent fraud or other illegal activities.

8.2 EV Group uses a technology called “cookies“ in order to automatically recognize users upon their next visit of the Website. Cookies are stored on the hard disk of the user and allow EV Group to match the Website to the user’s interests or to store the password so the user does not need to re-enter it each time. The user is able to set his browser to prevent the storage of cookies. The user accepts the use of cookies and the storage of gained information by EV Group until the user prevents such storage.

9. Links to and from other Websites

9.1 The Website may contain links to other sites of specific interest to the user. EV Group is not responsible for the content, security, or privacy practices employed by other sites. EV Group is not liable for the content of any linked site or any link contained in a linked site. If the user decides to access any of the third party sites linked to this Website, it is entirely at the own risk of the user. EV Group reserves the right to terminate any link at any time.

9.2 Any link from other sites to this Website requires the prior written approval of EV Group.

10. Disclaimer

10.1 THIS WEBSITE AND THE CONTENT AVAILABLE THROUGH IT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE USER EXPRESSLY AGREES THAT THE USE OF THIS WEBSITE AND/OR ITS CONTENT IS AT THE SOLE RISK OF THE USER. THE USER UNDERSTANDS AND AGREES THAT THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS BUSINESS, COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE ACCESS TO, USE OF, OR DOWNLOAD FROM THIS WEBSITE.

10.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EV GROUP EXCLUDES ALL WARRANTIES AND LIABILITES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PAR-TICULAR PURPOSE OR NON-INFRINGEMENT.

10.3 EV GROUP DOES NOT MAKE ANY WARRANTY OR ASSUME ANY LIABILITY THAT THIS WEBSITE OR ITS CONTENT WILL MEET THE USERS' REQUIREMENTS, OR THAT THIS WEBSITE OR ITS CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. NOR DOES EV GROUP MAKE ANY WARRANTY OR ASSUME ANY LIABILITY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS WEBSITE OR ITS CON-TENT OR AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THIS WEBSITE.

10.4 UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL EV GROUP BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THIS WEBSITE OR ANY CONTENT CONTAINED ON THIS WEBSITE, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF THE TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF EV GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Applicable Law

11.1 These Terms and Conditions of Use shall be governed by and construed in accordance with the laws of Austria excluding its conflict of law rules and the UNCITRAL rules.

11.2 All disputes arising out of or related to these Terms and Conditions of Use shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vi-enna (Vienna Rules) by one or three arbitrators appointed in accordance with these Rules.

11.3 The place of arbitration shall be Vienna. The present arbitration clause shall be governed by Austrian law. The language of arbitration shall be the English language. The proceedings shall be governed by the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Federal Economic Chamber, Vienna (Vienna Rules).

11.4 Notwithstanding this arbitration clause, EV Group reserves the right, at its sole discretion, to take legal action against the user before the competent court of law for the town Ried im Innkreis or for the corporate seat of the user.

12. Miscellaneous

12.1 In case of any discrepancy between these Terms and Conditions of Use and the Standard Terms and Conditions of EV Group these Terms and Conditions of Use shall prevail. Should any provision of these Terms and Conditions of Use be or become wholly or partly invalid or unenforceable this will not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision shall be substituted by a valid or enforceable provision which in its essential purpose comes as close as possible to the invalid or un-enforceable provision.

12.2 Versions of these Terms and Conditions of Use in as language other than the English language are translations for information purposes of the user only. In case of interpretation issues and discrepancies due to linguistic differences between the English and the German version the English version shall prevail.

All rights reserved. EV Group Europe & Asia/Pacific GmbH, DI Erich Thallner Straße 1, A-4782 St.Florian/Inn, Austria (Legal Form: Limited Liability Company; Corporate Seat: Sankt Florian am Inn; Registration Number: FN 316 392 h; Court: LG Ried im Innkreis; VAT-Identification Number: ATU 64462708)

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