GENERAL TERMS AND CONDITIONS
1.1 These "General Terms and Conditions" shall apply to all legal transactions between the Contractor and the Client.
1.2 In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and economic purpose.
2.1. The subject of an order may be:
2.2. The development of individual organizational concepts and programs shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This shall also include practical test data as well as test facilities to a sufficient extent, which shall be provided by the client in a timely manner, during normal working hours and at its own expense. If the client is already working on the system provided for testing in live operation, the responsibility for securing the live data lies exclusively with the client.
2.3. The basis for the creation of individual programs is the written performance specification, which the contractor prepares against cost calculation based on the documents and information provided to him. This performance specification is to be checked by the customer for correctness and completeness. The Customer shall notify the Contractor in writing within 14 days (calculated from the date of dispatch by the Contractor) of any change requests, additions, line extensions, etc.. If no written notification is received within this period, the content of the service description provided by the Contractor shall be deemed to be agreed and the Customer shall agree to the services to this extent. Change requests occurring later may lead to postponement of the deadline or may be charged separately by the Contractor.
If the Client provides the service description, its content shall only be deemed to be agreed upon upon explicit and written confirmation by the Contractor.
2.4. Individually created software or program adaptations require program acceptance by the Contractor for the respective program package at the latest four weeks after delivery. This is confirmed in a protocol by the client. (Check for correctness and completeness on the basis of the agreed service description by means of the test data provided under point 2.2). If the Customer allows the period of four weeks to elapse without accepting the program, the software supplied shall be deemed to have been accepted on the end date of the said period. The software shall be deemed to have been accepted in any case upon commencement of the use of the software in live operation by the Customer. Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported to the Contractor by the Customer in writing and documented in detail. In the event of material defects reported in writing (i.e. defects that prevent the software from going live), a new acceptance test shall be carried out after the defects have been rectified, whereby the above provisions on acceptance shall be applied. The Customer shall not be entitled to refuse acceptance of software due to immaterial defects (i.e. defects that do not prevent live operation).
2.5. When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
2.6. Should it become apparent in the course of the performance by the Contractor that the execution of the order in accordance with the performance specification is actually or legally impossible, the Contractor shall notify the Client thereof. If the Client does not subsequently agree to an amendment of the service description to that effect or does not create the prerequisite that further execution is nevertheless possible, the Contractor may refuse execution. The costs and expenses incurred by the contractor up to that point as well as any dismantling costs shall be reimbursed by the client. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change in the service description by the client, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the Contractor's activities up to that point as well as any dismantling costs shall be reimbursed by the Client.
2.7. Any shipment of program carriers, documentation and service descriptions shall be at the expense and risk of the Customer, and insurance against loss in transit shall only be taken out at the express request of the Customer.
2.8. Should the client require training, further explanations, etc., these are to be agreed separately and will be invoiced separately.
3.1. All prices are quoted in Euro without value added tax. They shall only apply to the present order. The prices quoted are ex Contractor's registered office or place of business. The costs of program carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees shall be invoiced separately to the Customer.
3.2. For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is rendered. Deviations from the time spent by the Contractor according to the offer, for which the Contractor is not responsible, shall be charged to the Customer according to the actual incidence and the additional costs incurred as a result shall be borne by the Customer.
3.3. The costs for travel, daily and overnight allowances shall be invoiced to the Principal separately according to the respective valid rates. Travel times shall be deemed to be working time.
4.1. The Contractor shall endeavor to meet the agreed dates of performance (completion) as far as possible.
4.2. The targeted completion dates can only be met if the Customer completes all necessary work and submits all necessary documents by the dates specified by the Contractor (in particular, if necessary, provides the performance specifications to be supplied by the Contractor pursuant to Section 2.3) and fulfills its obligation to cooperate to the extent required. The Contractor shall not be responsible for delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed data and information or documents provided and such delays shall not result in default on the part of the Contractor. Any additional costs resulting therefrom shall be borne by the Customer.
4.3. In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries or to issue partial invoices.
5.1. Invoices issued by the Contractor, including value added tax, shall be payable without any deductions and free of charges no later than 14 days after receipt of the invoice. For partial invoices, the terms of payment specified for the overall order shall apply analogously.
5.2. In the case of orders comprising several units (e.g. programs and/or training, realizations in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or service.
5.3. The Customer's compliance with the agreed payment dates shall be an essential condition for the Contractor's performance of the delivery or fulfillment of the contract. Failure to comply with the agreed payments shall entitle the Contractor to stop the work in progress and to withdraw from the contract. All related costs as well as loss of profit shall be borne by the Client. In the event of late payment, interest on arrears shall be charged at the usual bank rate or at the statutory rate. In the event that partial payments are agreed upon by the client, failure to pay two installments on time or in full - without separate notification - shall result in a loss of the deadline and the contractor may declare any acceptances handed over to be due and payable.
5.4. The Customer shall not be entitled to withhold payments or partial payments due to incomplete overall delivery, warranty or guarantee claims or complaints.
6.1. The Contractor or its licensors shall be entitled to all copyrights to the agreed services (programs, documentation, etc.). After payment of the agreed fee, the Customer shall be entitled to use the software exclusively for its own purposes, only for the hardware specified in the contract and to the extent of the purchased number of licenses for simultaneous use on several workstations. By the present contract only a work use authorization is acquired by the client. The client is prohibited from distributing, passing on or otherwise using the agreed services. The Customer's participation in the production of the software shall not result in the acquisition of any rights beyond the authorization to use the work as stipulated in the present contract. Any infringement of the Contractor's copyrights shall result in claims for damages, whereby full satisfaction shall be paid in such a case.
6.2. The Customer shall be permitted to make copies for archiving and data backup purposes provided that there is no express prohibition of the Contractor, Licensor or third parties with regard to the software and that all copyright and proprietary notices are transferred unchanged.
6.3. If the disclosure of the interfaces is required for the creation of interoperability of the software in question, this shall be ordered by the Customer from the Contractor against reimbursement of costs. If the Contractor does not comply with this requirement and decompilation takes place in accordance with the Copyright Act, the results are to be used exclusively for the purpose of establishing interoperability. Misuse will result in compensation for damages.
7.1. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Customer shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts even within the reasonable grace period and the Customer is not at fault for this.
7.2. Force majeure, labor disputes, natural disasters and transport blockades as well as other circumstances beyond the control of the Contractor shall release the Contractor from the obligation to deliver or allow it to reschedule the agreed delivery time.
7.3. The Customer may only withdraw from the concluded contract with the written consent of the Contractor. If the Contractor agrees to a withdrawal, it shall have the right to charge a cancellation fee in the amount of 30% of the order value of the total project not yet invoiced, in addition to the services rendered and costs incurred.
8.1. Notices of defects shall only be valid if they concern reproducible defects and if they are documented in writing within 4 weeks after delivery of the agreed service or, in the case of individual software, after acceptance of the program in accordance with clause 2.4. In the event of a warranty claim, the improvement shall in any case have priority over the other warranty remedies. In the event of a justified notice of defect, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary to examine and remedy the defect. The presumption of defectiveness according to § 924 ABGB is excluded by mutual agreement.
8.2. Corrections and additions which prove to be necessary until the handover of the agreed service due to organizational and programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.
8.3. Costs for assistance, misdiagnosis as well as elimination of errors and malfunctions for which the Customer is responsible as well as other corrections, changes and additions (compared to the service description) shall be carried out by the Contractor against separate invoicing. This shall also apply to the elimination of defects caused by program changes, additions or other interventions by the Customer or by third parties.
8.4. The Contractor shall not provide any warranty for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
8.5. Any warranty by the Contractor shall lapse for programs which are subsequently modified by the Customer's own programmers or by third parties.
8.6. If the subject of the order is the modification or supplementation of already existing programs, the warranty shall refer to the modification or supplementation. The Contractor shall not provide any warranty for the original program.
9.1 Programs, functions and applications on IT systems of the Customer - which can be reached via the INTERNET, must be configured and modified by the Customer independently, unsolicited and promptly in such a way that they can only be reached via VPN technology in the "Intranet" of the Customer. The Contractor shall only install, configure and start a functional web-based solution WITHOUT SECURITY PROVISIONS. The Contractor shall install a web server on the IT systems provided by the Customer, install and start services, open required TCP-IP ports and, if necessary, make exceptions in div virus scanner applications. The web server installed by the Contractor must be made inaccessible to unauthorized persons by the Customer. The TCP-IP ports released by the Contractor must be secured by the Customer in such a way that unauthorized persons cannot gain access to them.
9.2 The technology required and communicated by the Contractor for the secure operation of the solution installed and configured by the Contractor is a VPN (Virtual Private Network) to which ANY end device must connect in order to communicate with the server set up and operated by the Contractor.
10.1 The Contractor and its suppliers shall be liable for damages, insofar as intent or gross negligence can be proven against it, within the scope of the statutory provisions. Liability for slight negligence is expressly excluded. The Contractor and its suppliers shall in no case be liable for compensation for consequential, pecuniary or punitive damages, lost profits, unrealized savings, loss of interest and for damages arising from third party claims against the Client. This shall apply even if the Contractor or its suppliers were informed of the possibility of such damages, etc. In particular and expressly excluded is any liability of the contractor for the consequences of incorrect, faulty, incomplete etc. information. In particular and expressly excluded is any liability of the contractor for the consequences of incorrect, faulty, incomplete etc. information of maintenance dates, inspections, component life cycle, material consumption etc. by the delivered software, furthermore for the consequences of a system crash caused by this software in the EDP system of the customer.
11.1 The total liability of Contractor and its suppliers under this Agreement, whether in contract or tort (including negligence), shall be limited to the amount paid or payable for the Software. Contractor shall act on behalf of its suppliers solely for the purpose of disclaiming, excluding and/or limiting obligations, warranties or liability under this Agreement, but otherwise Contractor shall not act on behalf of its suppliers.
12.1 The limited warranty and the exclusion of liability, the warranty rights and the limited liability represent fundamental conditions of the contract between the Contractor and the Client. Without these limitations, it would not be possible for the Contractor to offer the Software in a commercially reasonable manner. The limited warranty, the exclusion of liability, the limitation of claims and the limitation of liability also extend to the licensors of the Contractor.
13.1 The software products supplied by Contractor are not fault-tolerant and have not been designed or manufactured for use or resale as control software, analysis software, or data acquisition software (e.g.: reading hour meters) in hazardous environments where trouble-free operation is required, such as. in cable car facilities, amusement parks, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems where failure of the software would result directly or indirectly in death, personal injury, loss of profit or loss, or serious damage to property or the environment. The software product may not be used if its function could be impaired, disturbed or hindered by another software product, device, system, network or other product or is actually impaired, disturbed or hindered.
14.1 The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees of the other contractual partner who have worked on the realization of the orders for the duration of the contract and 12 months after its termination. The contracting party violating this provision shall be obliged to pay liquidated damages in the amount of one gross annual salary of the employee concerned.
15.1 The Contractor and its employees undertake to comply with the provisions of §15 of the Data Protection Act.
16.1 Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. In such a case, the invalid provisions shall be replaced by provisions which come as close as possible to their purpose.
17.1 The Contractor's registered office shall be the place of performance for all services rendered by the Contractor. This shall also apply if the handover or delivery takes place at another location as agreed. The place of jurisdiction for all disputes arising from or in connection with the concluded contract shall be the court having local jurisdiction for the Contractor's registered office. On the part of the Contractor, however, there is also the possibility to appeal to the court responsible for the Client. The contract shall be governed by Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (BGBl 1988/96). For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide for other provisions.
For completeness, correctness, accuracy and timeliness of the data and results of the purchased software product no warranty is given by the contractor and its suppliers. Regardless of the results of the software, all legal regulations, standards, manufacturer specifications ect. are to be fulfilled by the client.