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General Terms and Conditions

1. scope and validity of the contract

1.1. All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company and are only binding to the extent specified in the order confirmation. The client’s terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are always subject to change.

2. performance and testing

2.1. The subject of an order can 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 work usage authorizations – Assistance with commissioning (conversion support) – Telephone consulting – Program maintenance – Creation of program carriers – Other services

2.2. The development of individual organizational concepts and programs is carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practical test data and sufficient testing facilities, which the client provides in a timely manner, during normal working hours and at its own expense. If the client is already working in live operation on the system provided for testing, the responsibility for backing up the live data lies with the client.

2.3. The basis for the creation of individual programs is the written service description, which the contractor prepares against cost calculation on the basis of the documents and information made available to him or provided by the client. This service description must be checked by the client for correctness and completeness and provided with its approval note. Subsequent requests for changes may lead to separate agreements on dates and prices.
2.4. Individually created software or program adaptations require program acceptance by the client for the respective program package concerned no later than four weeks after delivery. 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 using the test data provided under point 2.2). If the client allows the period of four weeks to elapse without accepting the program, the delivered software shall be deemed to have been accepted on the end date of the aforementioned period. If the software is used in live operation by the client, the software shall in any case be deemed to have been accepted.
Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported by the Client to the Contractor with sufficient documentation, who shall endeavor to rectify any defects as quickly as possible. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance procedure is required once the defects have been rectified. The client is not entitled to refuse acceptance of software due to 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 is actually or legally impossible, the Contractor shall be obliged to notify the Client of this immediately. If the client does not amend the service description to this effect or does not create the conditions that make execution possible, the contractor may refuse execution. If the impossibility of performance is the result of an omission on the part of the Client or a subsequent change to the service description by the Client, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor’s activities as well as any dismantling costs shall be reimbursed by the Client.

2.7. Program carriers, documentation and service descriptions shall be sent at the expense and risk of the client. Any additional training and explanations requested by the client will be invoiced separately. Insurance is only taken out at the request of the client.

2.8. We expressly point out that a barrier-free design (of websites) within the meaning of the Federal Act on Equal Opportunities for Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz – BGStG)” is not included in the offer, unless this has been requested separately/individually by the client. If the barrier-free design has not been agreed, the client shall be responsible for checking the admissibility of the service with regard to the Federal Disability Equality Act. The client must also check the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilling any duty to warn the customer, the contractor shall not be liable for the legal admissibility of content if this was specified by the customer.

3. prices, taxes and fees

3.1. All prices are in euros excluding VAT. They apply only to the present order. The prices quoted are ex the 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.) and any contract fees shall 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 work involved will be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based and for which the Contractor is not responsible shall be invoiced according to actual occurrence.

3.3. The costs for travel, daily and overnight allowances shall be invoiced separately to the client in accordance with the applicable rates. Travel times count as working time.

4. delivery date

4.1. The Contractor shall endeavor to meet the agreed deadlines for performance (completion) as precisely as possible.

4.2. The targeted fulfillment dates can only be met if the Client has completed all necessary work and documents by the dates specified by the Contractor, in particular the service description accepted by the Client in accordance with Section 2.3. and fulfills its obligation to cooperate to the extent required.
Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided are not the responsibility of the Contractor and cannot lead to default on the part of the Contractor. Any resulting additional costs shall be borne by the client.

4.3. In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries or issue partial invoices.

5. payment

5.1. Invoices issued by the Contractor, including value added tax, are payable within 14 days of receipt of the invoice without any deductions and free of charges. The terms of payment stipulated for the overall order shall apply analogously to partial invoices.

5.2. In the case of orders comprising several units (e.g. programs and/or training courses, implementation in partial steps), the Contractor shall be entitled to issue an invoice after delivery of each individual unit or service.

5.3. Compliance with the agreed payment deadlines is an essential condition for the performance of the delivery or fulfillment of the contract by the Contractor. Failure to comply with the agreed payments shall entitle the Contractor to suspend ongoing work and withdraw from the contract. All associated costs and 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. If two installments for partial payments are not paid on time, the contractor shall be entitled to enforce the loss of deadlines and to call in any acceptances handed over.

5.4. The client is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints.

6 Copyright and use

6.1. After payment of the agreed fee, the Contractor shall grant the Client a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the software for the hardware specified in the contract and to the extent of the number of licenses purchased for simultaneous use on several workstations, to use all work results created on the basis of the Contractor’s contract for its own internal use. All other rights shall remain with the Contractor.
The cooperation of the client in the production of the software does not result in the acquisition of any rights beyond the use specified in this contract. Any infringement of the Contractor’s copyrights shall give rise to claims for damages, in which case full satisfaction shall be provided.

6.2. The client is permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.

6.3. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this must be ordered from the Contractor by the Client for a fee. If the Contractor does not comply with this requirement and decompilation is carried out in accordance with copyright law, the results shall be used exclusively to establish interoperability. Misuse will result in compensation.

6.4. If the client is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).

7. right of withdrawal

7.1. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Client shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the Client is not at fault.

7.2. Force majeure, labor disputes, natural disasters and transport blockages as well as other circumstances beyond the Contractor’s control shall release the Contractor from the delivery obligation or allow the Contractor to redetermine the agreed delivery time.

7.3. Cancellations by the client are only possible with the written consent of the contractor. If the Contractor agrees to a cancellation, it shall be entitled to charge a cancellation fee amounting to 30% of the unbilled order value of the overall project in addition to the services rendered and costs incurred.

8 Warranty, maintenance, modification

8.1. The Contractor warrants that the software fulfills the functions described in the associated documentation, provided that the software is used on the operating system described in the contract. The prerequisite for error correction is that the Client describes the error sufficiently in an error message and that this can be determined by the Contractor; the Client provides the Contractor with all documents required for error correction; the Client or a third party attributable to it has not interfered with the software; the software is operated under the intended operating conditions in accordance with the documentation.
In the event of a warranty claim, rectification shall in any case take precedence over price reduction or rescission. In the event of justified notification of defects, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to investigate and remedy the defects.
The presumption of defectiveness acc. ยง Section 924 ABGB shall be deemed excluded.

8.2.3 Corrections and additions that prove necessary up to 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 error and fault rectification for which the client is responsible as well as other corrections, changes and additions shall be carried out by the contractor against payment. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client itself or by a third party.

8.4. Furthermore, the Contractor assumes no liability for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational resources 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. The Contractor shall not provide any warranty for programs that are subsequently modified by the Client’s own programmers or third parties.

8.6. Insofar as the subject of the order is the modification or supplementation of existing programs, the warranty refers to the modification or supplementation. This does not revive the warranty for the original program.

8.7. Warranty claims expire six (6) months after delivery.

9. liability

9.1. The Contractor shall only be liable to the Client for damage for which it is demonstrably responsible in the event of gross negligence. This shall also apply mutatis mutandis to damage attributable to third parties engaged by the Contractor. In the event of personal injury for which the Contractor is responsible, the Contractor shall be liable without limitation.

9.2. Liability for indirect damages – such as loss of profit, costs associated with business interruption, loss of data or third-party claims – is expressly excluded.

9.3. Claims for damages shall lapse in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the damaging party.

9.4. If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the client shall give priority to these third parties.

9.5. If data backup has been expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from point 9.2, but shall be limited to a maximum of EUR 10 % of the order amount per claim, up to a maximum of EUR 15,000. Warranty claims and claims for damages on the part of the Client that go beyond those specified in this contract – irrespective of the legal basis – are excluded.

10. loayility

10.1. The contracting parties undertake to be mutually loyal. They shall refrain from any enticement and employment, including via third parties, of employees of the other contracting party who have worked on the realization of the orders during the term of the contract and for 12 months after termination of the contract. The infringing contractual partner is obliged to pay liquidated damages in the amount of one year’s salary of the employee.

11. secrecy

11.1. The Contractor shall oblige its employees to comply with the provisions of Section 6 of the Data Protection Act.

12. other

12.1 Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.

13. final provisions

13.1 Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is executed abroad. Any disputes shall be subject exclusively to the local jurisdiction of the court with subject-matter jurisdiction for the Contractor’s place of business. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply insofar as the Consumer Protection Act does not provide for other mandatory provisions.

14. mediation clause

In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties mutually agree to consult registered mediators (ZivMediatG) specializing in business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of business mediators or on the content of the negotiations, legal action will be initiated at the earliest one month after the failure of the negotiations.
In the event that mediation is not concluded or is terminated, Austrian law shall apply in any court proceedings that may be initiated. All necessary expenses incurred as a result of prior mediation, in particular those for a legal advisor, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.

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