Terms of service
1. Scope of Contract and Validity
All orders and agreements are only legally binding if they are drawn up by the contractor in writing and in accordance with the company and are binding only on the extent specified in the order confirmation. Purchasing conditions of the customer are hereby excluded for the subject legal transaction and the entire business relationship. All offers are non-binding.
2. Scope of Services
2.1 The subject of an order can be:
- Elaboration of organizational concepts
- Global and detailed analyzes
- Creation of individual programs
- Delivery of library (standard) programs
- Acquisition of usage rights for software products
- Acquisition of authorizations for use
- Participation in commissioning (changeover assistance)
- Telephone support
- Program maintenance
- Creation of program carriers
- Other services
2.2 The preparation of individual organizational concepts and programs will be carried on the type and extent by the seller with information, documents and tools completely provided by the costumer. This also includes practical test data as well as test options to an appropriate extent, which is made available by the customer in a timely manner, in normal working hours and at his own expense. If the customer is already working on the provided test system in real operation, the customer is responsible for securing the real data.
2.3. The basis for the creation of individual programs is the written description of the services, which the Contractor draws up against the cost calculation on the basis of the documents and information provided and made available by the costumer. This service description is to be checked by the costumer for correctness and completeness and provided with his approval. Any subsequent change requests may lead to separate deadlines and additional price agreements.
2.4. Individually developed software or program adaptations require a program acceptance for the affected program package at the latest four weeks from delivery by the customer. This is confirmed in a protocol by the customer. (Check for correctness and completeness on the basis of the service description accepted by the contractor by means of the test data provided in section 2.2). If the customer over goes the period of four weeks without a program acceptance response, the software delivered by the end date of the specified period is deemed accepted. When using the software in real-time operation by the costumer, the software is considered as accepted.
Any defects, which are deviations from the written description of the service, shall be reported to the Contractor by the costumer, with sufficient documentation, to ensure the quickest possible remedial action. If there are significant deficiencies reported in writing, i.e. that the real operation cannot be started or continued, a new inspection is necessary after rectification of the specified defect.
The costumer is not entitled to reject the acceptance of software due to negligible defects.
2.5 When ordering library-(standard)-programs, the costumer confirms with the order the knowledge of the scope of services of the ordered programs.
2.6. If, in the course of the work, the execution of the order according to the description of the service is actually or legally impossible, the contractor is obliged to notify the customer immediately. If the costumer does not change the description of the performance or creates the prerequisite that makes an execution to be possible, the contractor may refuse to execute the order. If the impossibility of execution is the result of a failure by the costumer or a subsequent modification of the service description by the costumer, the contractor is entitled to withdraw from the order. The costs transaction fees and expenses incurred up to then for the activity of the contractor as well as any dismantling costs shall be replaced by the costumer
2.7. The transmission of program carriers, documentation and performance descriptions shall be at the expense and risk of the costumer. In addition, training and declarations requested by the costumer are invoiced separately. Insurances are only made at the request of the customer.
2.8. We expressly point out that a barrier-free design (of websites) as defined by the Federal Act on Equality of Persons with Disabilities (Federal Disability Equalization Act - BGStG) "is not included in the offer, if this has not been requested separately by the costumer. If the barrier-free design has not been agreed upon, the customer is responsible for checking the performance for its admissibility with regard to the Federal Disability Equalization Act. Likewise, the customer has to check the contents provided by him for their legal, in particular competition, trademark, copyright and administrative permissibility. The Contractor shall not be liable for the legal permissibility of content in the event of slight negligence or after complying with a possible warning obligation against the customer if these have been specified by the customer.
3. Prices, taxes and fees
3.1. All prices are in Euro without VAT. They apply only to this order. The prices quoted are from the contractor's place of business or location. The cost of program carriers (e.g., CD's, SD cards, etc.) as well as any contract fees will be charged separately.
3.2. In the case of library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion assistance, telephone consultation, etc.), the workload is charged at the rates valid on the day of service. Deviations from the time required for the contract price, which is not the responsibility of the Contractor, will be calculated on the basis of an actual effectively charge
3.3. The costs for travel, day and overnight allowances shall be invoiced separately to the costumer at the current rates valid in each case. Travel times are considered working hours.
4. Delivery date
4.1. The Contractor shall endeavour to comply as closely as possible with the agreed dates of fulfilment (completion).
4.2. The intended fulfilment dates can only be fulfilled if the customer completes all necessary work and documents on the dates specified by the contractor in particular the service description accepted by him in accordance with point 2.3 and complies with its obligation to cooperate to the extent required.
Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently amended information and / or provided documents are not the responsibility of the contractor and cannot lead to the delay of the contractor. Consequently the costumer is responsible for the additional costs.
4.3. In the case of orders that comprise several units or programs, the contractor is entitled to carry out partial deliveries or to subdivide partial deliveries.
5.1. The invoices submitted by the contractor, including value-added tax shall be payable no later than 14 days after invoice receipt without any deduction and free of charge. In the case of partial invoices, the payment terms laid down for the overall contract shall be analogous
5.2. In the case of orders comprising several units (for example, programs and / or trainings, implementations in partial steps), the contractor shall be entitled to take account of the delivery of each unit or service.
5.3. The compliance with the agreed payment dates constitutes an essential condition for the performance of the delivery or contract fulfillment by the contractor. The non-compliance of the agreed payments entitles the contractor to terminate the ongoing work and to withdraw from the contract. All associated costs as well as the profit loss must be borne by the customer.
In the event of a payment delay, interest on arrears will be charged at the bank's customary rate. In the event of non-compliance with two installments, the contractor shall be entitled to terminate the loss of the contract and to pay the agreed outstanding acceptances.
5.4. The customer is not entitled to withhold payment due to incomplete delivery, guarantee or warranty claims or deficiencies.
6. Copyright and Usage
6.1. The contractor shall grant the customer, after payment of the agreed fee, a non-exclusive, non-transferable, non-sublicensable and unlimited right to use the software for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on several workstations within the basis of the contracts, for their own internal use. All other rights remain with the contractor.
Any active engagement of the costumer in the manufacture of the software does not confer any rights over the use defined in the present contract. Any breach of the copyrights of the contractor shall entail claims for damages, in which case full compensation has to be given
6.2. The costumer is allowed to make copies for archiving and data backup purposes under the condition that the software does not contain an express prohibition of the licensor or third parties, and that all copyright and proprietary notices are transferred without alteration to these copies.
6.3. If the disclosure of the interfaces is necessary for the production of interoperability of the software in question, the costumer is to commission the contractor for the remuneration of the costs. If the costumer fails to comply with this requirement and makes a decompilation according to the Copyright Act, the results shall only be used to establish interoperability. Misuse leads to compensation of the damages.
Legal changes that result in new program logic, that is, changes in existing functions that lead to new programs and program modules, as well as possibly necessary additions to the hardware, are not included in the performance obligations covered by this contract. These programs will be offered separately to the buyer along with the required data carriers and documentation.
6.4. If software is provided to the costumer, whose license holder is a third party (e.g. Microsoft standard software) the granting of the right of use according to the license terms of the license owner (manufacturer) is directed.
7. Withdrawal Right
7.1. In the excess of the delivery date of an agreed delivery time resulting from the sole fault or unlawful conduct of the contractor, the customer shall be entitled to withdraw from the relevant order by means of a registered letter, even if the agreed performance is not provided in substantial parts within the reasonable extension period of time meets.
7.2 Force majeure, work conflicts, natural catastrophes and transport locks as well as other circumstances beyond the control of the contractor release the contractor from the delivery obligation or/and allow him to re-establish the agreed delivery time.
7.3. Cancellations by the customer are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge a termination fee of 30% of the contract value of the entire project, which has not yet been billed, in addition to the services rendered and accrued costs.
8. Warranty, Maintenance, Modifications
8.1. The contractor shall ensure that the software complies with the functions described in the accompanying documentation, provided that the software is used on the operating system described in the contract.
8.2.1 Prerequisite for troubleshooting applies as follows;
- The costumer describes the error sufficiently in an error description message and which can be determined for the contractor;
- The contracting party provides the contractor with all the documents necessary for the correction of the defect;
- The customer or a third party assigned to it has not intervened in the software;
- The software is operated under the proper operating conditions according to the documentation.
8.2.2 In case of warranty; improvement shall take precedence over price reduction or conversion. In the case of justified complaints, the deficiencies will be remedied within a reasonable time, whereby the costumer allows the contractor to take all necessary measures to investigate and rectify the defects.
The presumption of defectiveness according to fig. § 924 ABGB is considered excluded.
8.2. Corrections and additions, which have been proven necessary until the delivery of the agreed service, due to organizational and programming deficiencies are the responsibility of the contractor, are carried out free of charge by the Contractor.
8.3. The costs for assistance, misdiagnosis, bugs and fault rectification, likewise changes and additions as well as other corrections which are to be advocated by the costumer; are to be carried out by the contractor against payment. This also applies to the correction of non-compliances or deficiencies, if program modifications, additions or other interventions have been made by the costumer itself or by a third party.
8.4. Furthermore, the contractor does not accept any abnormal operating conditions (in particular deviations from the installation and storage conditions) for errors, malfunctions or damage resulting from improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational devices and data media transport damage.
8.5. For programs that are subsequently altered by the customer's own programmers or by third parties, any existing warranty given by the contractor is no longer applicable.
8.6. If the object of the order is to modify or supplement existing programs, the warranty refers to the amendment or amendment. The guarantee for the original program does not resurrect.
8.7. Warranty claims expire six (6) months after delivery
9.1. The contractor shall be liable to the customer for damages caused by him, only in the case of gross negligence. This shall also apply mutatis mutandis to damages caused by third parties contracted by the contractor. In the case of indebted personal injury, the contractor is liable without limitation.
9.2. Liability for indirect damages - such as lost profits, costs associated with a business interruption, data loss or claims by third parties - are expressly excluded.
9.3. Compensation claims are limited by the statutory provisions, but no later than one year after becoming aware of the damage and the damaging party.
9.4. If the contractor performs the work with the help of third parties and, in this context warranty and / or liability claims against these third parties arise, the contractor enters these claims to the costumer from. In this case, the costumer shall primarily hold such third parties.
9.5. If the data backup is expressly agreed as a performance, the liability for the loss of data is not excluded from point 8.2, but limited to the recovery of the data up to a maximum of EUR 10% of the order sum per claim, to a maximum EUR 15,000. Further than that the warranty and compensation claims referred to in this contract by the AG -likewise unvarying of the legal reason, are excluded.
10.1. The contractual partners commit themselves to mutual loyalty. They will refrain from any recruitment or employment, even by third parties, by employees who have worked on the execution of the orders, to the other contract partner during the duration of the contract and 12 months after the termination of the contract. The contracting party violating the contract is obliged to pay flat-rate damages to a total amount of one year's salary.
11. Data Protection, Secrecy
11.1. The contractor obliges his employees to comply with the provisions pursuant to § 15 of the Data Protection Act.
12.1 Should individual provisions of this contract be or become invalid or ineffective, the remaining contents of this contract shall not be affected. The parties to the contract will cooperate in partnership to find a regulation which is as close as possible to the invalid provisions.
13. Final provisions
13.1 Unless otherwise agreed, the legal provisions applicable between contractors apply exclusively in accordance with the Austrian law, even if the contract is carried out abroad. In the case of possible disputes, only the local jurisdiction of the factually competent court for the place of business of the contractor is deemed to have been agreed upon. For the sale to consumers as defined in the Consumer Protection Act, the above provisions apply only insofar as the Consumer Protection Act does not necessarily provide for other provisions.