GENERAL TERMS AND CONDITIONS
for the sale and delivery of organizational and programming services and permissions to use of software products 2018
1 Scope of contract and validity
All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company’s terms and conditions. are only binding to the extent specified in the order confirmation. The client’s terms and conditions of purchase shall apply for the objective legal transaction and the entire business relationship are hereby excluded. Offers are always non-binding.
2. performance and testing
2.1 The subject of an order may be:
- Development of organizational concepts
- Global and detailed analyses
- Creation of individual programs
- Delivery of library (standard) programs
- Acquisition of usage rights for software products
- Acquisition of licences for use of works
- Assistance with commissioning (conversion support)
- Advice by telephone
- program maintenance
- Creation of program carriers
- Other services
2.2 The development of individual organisational concepts and programmes shall be carried out in accordance with the type and scope of the work to be carried out by the client. binding information, documents and aids provided. This also includes practical test data and test options to a sufficient extent to be made available by the client in a timely manner, during normal working hours and at the client’s expense. If the client is already working in real operation on the system provided for testing, the responsibility for the Backup of real data at the client.
2.3 The basis for the creation of individual programs is the written description of services, which the contractor must provide againstcalculates costs on the basis of the documents and information made available to him or the client makes them available places. This service description is to be checked by the client for correctness and completeness and to be confirmed with his approval note to provide. Later requests for changes can lead to separate appointments and price agreements.
2.4 Individually created software or program adaptations require a program acceptance for the respective program package concerned. at the latest four weeks after delivery by the client. This is confirmed by the client in a protocol. (check for correctness and Completeness on the basis of the service description accepted by the contractor by means of the information provided under item 2.2. Test Data). If the client allows the period of four weeks to elapse without acceptance of the program, the delivered software is valid with the End date of the specified period as accepted. If the software is used in real operation by the customer, the software applies in any case than assumed. Any defects that may occur, i.e. deviations from the service description agreed in writing, are to be reported by the customer. sufficiently documented to the contractor, who shall endeavour to rectify the defects as quickly as possible. If significant defects have been reported in writing, i.e. real operation cannot be started or continued, a new acceptance is necessary after rectification of defects. The customer is not entitled to refuse acceptance of software because of of insignificant defects.
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 work that the execution of the order in accordance with the service description actually or legally is impossible, the contractor is obliged to notify the customer immediately. If the client changes the service description If the contractor fails to do so or creates the prerequisite for execution to become possible, the contractor may refuse execution. If the impossibility of execution is the result of the Client’s failure to perform or of a subsequent change in the description of services by the customer, the contractor is entitled to withdraw from the order. Until then for the activity costs and expenses incurred by the contractor as well as any dismantling costs shall be reimbursed by the customer.
2.7 Any dispatch of program carriers, documentation and service descriptions shall be at the expense and risk of the client. About training and explanations requested by the client will be invoiced separately. Insurance only on request of the client.
3. prices, taxes and fees
3.1 All prices are in Euro without VAT. They apply only to this order. The prices quoted start at Registered office or place of business of the contractor. 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 will be invoiced separately.
3.2 For library (standard) programs, the list prices valid on the day of delivery apply. For all other Services (organizational consulting, programming, training, conversion support, telephone consulting, etc.) the workload is reduced to the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, whichis not the responsibility of the contractor, will be charged according to actual occurrence.
3.3 The costs for travel, daily and overnight expenses shall be invoiced to the customer separately according to the respective valid rates.Travel times are considered working hours.
4th delivery date
4.1 The contractor shall endeavour to meet the agreed deadlines for performance (completion) as precisely as possible.
4.2 The delivery times stated in our offers are subject to change without notice. Delivery dates are only binding if expressly confirmed.They only begin with the receipt of our written order confirmation and payment on account agreed upon. If the customer is required to provide approvals, release declarations, installation plans, advance payments, certificates or other documents. the delivery period shall commence only upon complete delivery of these documents, irrespective of receipt of the order confirmation.
4.3 The desired performance dates can only be met if the customer meets the deadlines specified by the contractor. all necessary work and documents, in particular the service description accepted by him according to point 2.3. to the and fulfils its obligation to cooperate to the necessary extent. Delays in delivery and cost increases, which result from incorrect, incomplete or subsequently changed information and data or documents provided, are not the responsibility of the contractor and cannot lead to delay on the part of the contractor. The resulting Additional costs shall be borne by the client.
4.4 Our delivery dates are subject to the reservation of proper and timely self-supply and unforeseen events in the case of Production or other obstacles due to force majeure, operational disruptions, transport delays, industrial disputes, shortages of materials or import and export restrictions which subsequently make performance considerably more difficult or impossible for us or our suppliers. The delivery dates shall be extended by the period of the hindrance including an appropriate restart period. The delivery dates are met if by the expiry of the subject matter of the contract has left our works or we have notified our readiness for dispatch. The delivery dates shall also be deemed to have been met if the subject matter of the contract cannot be dispatched in time through no fault of ours. In this case, notification of readiness for dispatch is sufficient.
4.5 In the event of improper and timely self-delivery and unforeseen events which subsequently affect our performance obligations, we shall be entitled to claim damages. or make it considerably more difficult, we are entitled to withdraw from the contract without being liable for damages to the customer. to become one of the most important people in the world. We shall inform the customer immediately of the non-availability of the service and reimburse any consideration rendered without delay. If we do not declare ourselves on request, customers can withdraw from the contract.
4.6 If irregular payment transactions, deterioration of assets, cessation of payments, over-indebtedness, inability to pay, or If we are aware of a petition for insolvency opening of the customer, we are entitled, at our discretion, to deliver against cash on delivery or cash in advance. The customer is entitled to enforce these rights by providing security in the form of a directly enforceable bank guarantee in the amount of our claim for payment together with interest and costs.
4.7 In the case of orders comprising several units or programs, the contractor is entitled to make partial deliveries or partial invoices.
4.8 We are liable for delays in delivery in cases of intent or gross negligence in accordance with the statutory provisions. We are also liable for the fault of our representatives or vicarious agents. However, our liability is excluded in cases of gross negligence on the foreseeable, typically occurring damage. Furthermore, we shall be liable in accordance with the statutory provisions, insofar as the party to be represented delay in delivery is based on the culpable breach of an essential contractual obligation which exists if the breach of obligation relates to an obligation, which makes the proper execution of the contract possible in the first place and on whose fulfilment the customer may rely. In this case, too, our Liability is limited to the foreseeable, typically occurring damage. In all other cases of delay in delivery, we shall be liable for each completed delivery. week delay within the framework of a lump-sum compensation for delay amounting to 0.5% of the delayed delivery value, but not exceeding 5.0%. of the delayed delivery value. The customer is entitled to provide evidence of higher damage caused by default. Further claims and rights of the customer are excluded. The foregoing limitations shall not apply in the event of liability for breach of of life, body or health.
5.1 Invoices submitted by the contractor, including value-added tax, are due 14 days after receipt of the invoice at the latest, without any deduction or deduction. payable free of charge. The terms of payment specified for the entire order shall apply analogously to partial invoices.
5.2 In the case of orders comprising several units (e.g. programs and/or training, implementation in partial steps), the contractor shall is entitled to issue an invoice after delivery of each individual unit or service.
5.3 Compliance with the agreed payment dates is an essential condition for the performance of the delivery or performance of the contract. by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the work in progress. and to withdraw from the contract. All associated costs as well as the loss of profits are to be borne by the client. In the event of default in payment, default interest will be charged at the usual bank rate. If two instalments are not paid in instalments, the contractor must shall be entitled to allow the loss of deadlines to come into effect and to call for the payment of accepted bills of exchange.
5.4 The customer is not entitled to refuse payments due to incomplete delivery, guarantee or warranty claims. or to hold back criticism.
5.6 If payment of an invoice is not made in accordance with the conditions stated on the invoice, the contractor shall be entitled, in the case of reminders Default interest in the amount of 7% above the respective discount rate of the Austrian National Bank as well as fees of up to € 30,- per reminder letter to be charged.
6 Copyright and Use
6.1 After payment of the agreed remuneration, the contractor shall provide the customer with a non-exclusive, non-transferable service, the software for the hardware specified in the contract and to the extent of the purchased software, which may not be sub-licensed and for an unlimited period of time. number of licenses for simultaneous use on several workstations, all based on the contract of the of the contractor for his own internal use. All other rights remain with Contractor. By the cooperation of the client in the production of the software, no rights are transferred over the data contained in the present contract. for the defined use. Any infringement of the Contractor’s copyrights will result in claims for damages, whereby in a full satisfaction from such a case.
6.2 The client is permitted to make copies for archiving and data backup purposes under the condition that in the software does not expressly prohibit the licensor or third parties, and that all copyright and proprietary notices contained in the software are protected by copyright. copies can be transferred unchanged.
6.3 Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this is the responsibility of the customer. to commission the client from the contractor against reimbursement of costs. If the contractor does not comply with this requirement and if a decompilation according to copyright law, the results are to be used exclusively for the production of interoperability.
6.4 If software is made available to the client whose licence holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the licence provisions of the licence holder (manufacturer).
7. protection of intellectual property
7.1 The contracting parties mutually undertake to acknowledge the intellectual property of the respective other contracting party as such and to observe the respective legal position of the other contracting party in accordance with the statutory provisions. This is valid for 3 years beyond the contract period.
7.2 The copyrights to the works created by the contractor and his employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, programmes, performance specifications, drafts, calculations, drawings, data carriers etc.) remain with the contractor. They may only be used by the customer during and after termination of the contractual relationship for purposes covered by the contract. In this respect, the client is not entitled to copy and/or distribute the work(s) without the express consent of the contractor (management consultant). Under no circumstances shall the contractor (management consultant) be liable to third parties for unauthorised duplication/distribution of the work – in particular for the correctness of the work.
7.3 The violation of these provisions by the principal entitles the contractor to an immediate premature termination of the contractual relationship and to assert other statutory claims, in particular to injunctive relief and/or damages.
7.4 The use of professional statements made by the contractor for advertising purposes is prohibited and only permitted with the written consent of the contractor.
7.5 Furthermore, the client expressly undertakes to use the know-how gained from the cooperation with the contractor exclusively for his own purposes. The right of use is transferred to any legal successors.
8. right of withdrawal
8.1 In the event that an agreed delivery period is exceeded through the sole fault or unlawful action of the supplier, the supplier shall the client is entitled to withdraw from the relevant order by registered letter, even if within a reasonable period of time. If the agreed service is not rendered in essential parts and the customer is not to blame for this.
8.2 Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond the control of the supplier.release the contractor from the delivery obligation or allow him to redefine the agreed delivery date.
8.3 Cancellations by the customer are only possible with the written consent of the contractor. If the contractor is satisfied with a cancellation he has the right to charge a cancellation fee in the amount of 30% of the not yet paid amount, in addition to the services rendered and accrued costs. billed order value of the entire project.
9. warranty, maintenance, modifications
9.1 The contractor warrants that the software fulfils the functions described in the associated documentation, provided that the software is used on the operating system described in the contract.
9.2.1 The prerequisite for error correction is that
- the customer describes the error sufficiently in an error message and this can be determined by the contractor;
- the customer provides the contractor with all documents required to rectify the defect;
- the client or a third party attributable to him has not interfered with the software;
- the software is operated under the specified operating conditions according to the documentation.
9.2.2 In the event of warranty, improvement shall take precedence over price reduction or conversion in any case. If the notice of defects is justified, the defects shall be remedied within a reasonable period of time, whereby the Customer shall provide the Contractor with all information necessary for inspection. and rectification of defects. The presumption of defectiveness according to § 924 ABGB is excluded.
9.2 Corrections and additions that may be made until the agreed service is handed over due to organizational and technical program deficiencies, for which the contractor is responsible shall be carried out free of charge by the contractor.
9.3 Costs for assistance, misdiagnosis as well as fault and fault rectification for which the customer is responsible and other corrections,Changes and additions will be carried out by the contractor against payment. This also applies to the elimination of defects if program changes, additions or other interventions have been made by the client himself or by a third party.
9.4 Furthermore, the contractor assumes no liability for errors, malfunctions or damage resulting from improper operation, modified or improper operation. Operating system components, interfaces and parameters, use of unsuitable means of organization and data carriers, insofar as these are abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as totransport damages are to be led back.
9.5 For programs that are subsequently modified by the client’s own programmers or third parties, any and all Warranty by the contractor.
9.6 If the object of the order is to modify or supplement existing programs, the warranty shall apply to the modification. or supplement. This does not revive the warranty for the original program.
9.7 Warranty claims become statute-barred six (6) months after delivery.
10.1 The contractor shall only be liable to the principal for damages demonstrably caused by him in the event of gross negligence.This also applies mutatis mutandis to damages that can be attributed to third parties called in by the contractor. In the event of culpable The contractor has unlimited liability for personal injury.
10.2 Liability for indirect damages – such as loss of profit, costs associated with a business interruption, loss of data or claims of third parties – is expressly excluded.
10.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the injuring party.
10.4 If the contractor performs the work with the help of third parties and in this connection guarantees – and/or If liability claims against these third parties arise, the contractor assigns these claims to the customer. The client will in this case give priority to these third parties.
10.5 If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from item 8.2. excluded, but limited for the restoration of the data up to a maximum of EUR 10 % of the order sum per case of damage, however, maximumEUR 15.000,–. Further warranty claims and claims for damages of the Principal than those mentioned in this contract – regardless of which Legal reasons are excluded.
The contracting parties commit themselves to mutual loyalty. You will be responsible for any enticement and employment, including through third parties, of Employees who have worked on the realization of the orders, the other contractual partner during the duration of the contract and 12 months after termination of the contract. The breaching contractual partner is obliged to pay lump-sum damages in the amount of the employee’s annual salary.
12. Data protection, secrecy
The contractor obliges his employees to comply with the provisions of §15 of the Data Protection Act.
Should individual provisions of this contract be or become ineffective, the remaining content of this contract shall become ineffective. not touched. The contracting parties shall cooperate in a spirit of partnership in order to find a provision that complies with the invalid provisions. as close as possible.
14. Final clauses
Unless otherwise agreed, the legal provisions applicable between fully qualified merchants shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. Any disputes shall be subject exclusively to local jurisdiction. of the competent court for the place of business of the contractor as agreed. For sale to consumers in the sense of the Consumer Protection Act, the above provisions shall only apply to the extent that the Consumer Protection Act does not necessarily require other provisions.
As a business-friendly means of dispute resolution, the professional association of management consultancy and information technology recommends the following Mediation clause: In the event of disputes arising from this contract, which cannot be settled by mutual agreement, the contracting parties agree on the followingmediators (ZivMediatG) registered by mutual agreement for the out-of-court settlement of the conflict with the focus on economic mediation from theof the Department of Justice. Should it not be possible to reach agreement on the selection of economic mediators or on the content,legal action will be taken at the earliest one month after the failure of the negotiations. In the case of an unsuccessful or aborted Mediation, Austrian law applies in any court proceedings initiated. All disputes arising out of a previous Mediation the necessary expenses, in particular also those for a legal advisor called in, can, according to agreement in a court of law. or arbitration proceedings can be asserted as “pre-litigation costs”.