TERMS OF SERVICE
for the sale and supply of organizational, programming services and work permits of software products(B2B)
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 only obligate in the scope stated in the order confirmation. Purchasing conditions of the customer are hereby excluded for the legal transaction and the entire business relationship. Offers are always non-binding.
2.1. The subject of an order may be:
– Development 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 works use licenses
– Participation in commissioning (conversion support)
– Telefonic consultancy
– Program maintenance
– Creation of program makers
– Other services
2.2. The development of individual organizational concepts and programs is based on the type and scope of the binding information, documents and resources provided by the client. This includes practical test data as well as sufficient testing facilities that the client provides on time, in normal working hours and at his own expense. If the customer is already working in real operation on the equipment provided for the test, the responsibility for securing the real data lies with the customer.
2.3. Basis for the creation of individual programs is the written description of services, which the contractor prepares against cost calculation on the basis of the documents and information made available to him or makes available to the client. This description of services must be checked by the client for correctness and completeness and provided with his consent. Later requests for changes may lead to separate deadline and price agreements.
2.4. Individually created software or program adaptations require a program acceptance for the respective program package concerned no later than four weeks after delivery by the client. This is confirmed in a protocol by the client. (Verification 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 pass without program acceptance, the delivered software with the end date of said period shall be considered as accepted. If the software is used in real operation by the client, the software is considered as accepted.
Any defects that occur, such as deviations from the performance description agreed in writing, must be reported to the contractor in sufficient detail and endeavored to rectify the problem as quickly as possible. If significant defects have been reported in written form, that is, that the actual operation can not be started or continued, a new acceptance is required after remedying the defect.
The customer is not entitled to reject the 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 according to the specifications is actually or legally impossible, the contractor is obliged to notify the client immediately. If the client does not change the terms of reference or creates the condition that an execution becomes possible, the contractor may reject the execution. If the impossibility of the execution is the result of a failure of the client or a subsequent change of the service description by the client, the contractor is entitled to withdraw from the contract. The costs and expenses incurred until then for the work of the contractor as well as any dismantling costs shall be reimbursed by the client.
2.7. A shipment of program carriers, documentation and performance descriptions is at the expense and risk of the client. In addition, the customer desired training and explanations will be charged separately. Insurances are only 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 the Equalization of Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz – BGStG) “is not included in the offer, unless it was requested separately / individually by the client. If the barrier-free design has not been agreed, then the client is responsible for checking the performance for its admissibility with regard to the Federal Disability Equality Act. Likewise, the client has to check the contents provided by him for their legal, in particular competition, trademark, copyright and administrative law permissibility.
3.1. All prices are in Euro without VAT. They apply only to this order. The prices quoted are from the place of business or place of business of the contractor. The costs of program carriers (eg CDs, magnetic tapes, magnetic disks, floppy disks, streamers tapes, magnetic tape cassettes, etc.) as well as any contract fees will be charged 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 advice, etc.), the workload will be charged at the rates valid on the day the service is rendered. Deviations from a time expenditure on which the contract price is based, which is not the fault of the contractor, will be calculated after the actual seizure.
3.3. The cost of travel, day and overnight money will be charged to the client separately according to the applicable rates. Travel times are considered working hours.
4.1. The contractor endeavors to adhere to the agreed dates of fulfillment (completion) as precisely as possible.
4.2. The desired fulfillment dates can only be met if the client completes all necessary work and documents on the dates specified by the contractor, in particular the terms and conditions accepted by him according to point 2.3. and fulfills its obligation to cooperate to the extent necessary.
Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed information and information or documents made available are not the responsibility of the contractor and can not lead to default of the contractor. Resulting additional costs are borne by the client.
4.3. For orders involving several units or programs, the contractor is entitled to carry out partial deliveries or to lay partial invoices.
5.1. The invoices, including value added tax, submitted by the contractor are payable within 14 days of receipt of the invoice without any deduction and free of charge. For partial invoices, the terms of payment specified for the entire order apply analogously.
5.2. For orders involving several units (eg programs and / or training, implementation in steps), the contractor is entitled to charge for delivery of each unit or service.
5.3. Compliance with the agreed payment dates constitutes an essential condition for the performance of the delivery or fulfillment of the contract by the contractor. Non-compliance with the agreed payments entitle the contractor to discontinue the ongoing work and to withdraw from the contract. All associated costs and the loss of profits are to be borne by the client.
In the event of late payment default interest will be charged in the usual bank amount. Failure to comply with two installments for installment payments shall entitle the contractor to effect the loss of the term and to make the accepted acceptances due.
5.4. The client is not entitled to withhold payments due to incomplete total delivery, warranty or warranty claims or complaints.
6.1. The Contractor shall, after payment of the agreed fee, grant the Principal a non-exclusive, non-transferable, non-sublicensable and indefinite right to use the Software for the hardware specified in the Contract and to the extent of the acquired licenses for simultaneous use in multiple workplaces to use the results of work created for the basis of the contract of the contractor for its own, internal use. All other rights remain with the contractor.
By the co-operation of the client in the production of the software no rights over the use specified in the objective contract are acquired. Any infringement of the copyright of the contractor shall result in claims for damages, in which case full satisfaction shall be afforded.
6.2. Copying for archiving and data protection purposes is permitted to the client on the condition that no express prohibition of the licensor or third parties is contained in the software, and that all copyright and property notices in these copies are transferred unchanged.
6.3. Should the disclosure of the interfaces be necessary for the production of interoperability of the subject software, this shall be commissioned by the client against cost reimbursement from the contractor. If the contractor does not comply with this requirement and decompiles in accordance with copyright law, the results must be used exclusively to establish interoperability. Abuse results in damages.
6.4. If the customer is provided with software whose license holder is a third party (eg Microsoft standard software), the granting of the right of use is based on the license terms of the license holder (manufacturer).
7.1. In the event of exceeding an agreed delivery time due to sole fault or unlawful acts of the contractor, the client is entitled by registered letter to withdraw from the contract in question, even if within the appropriate period of time the agreed performance is not provided in significant parts and the client is not at fault meets.
7.2. Force majeure, labor disputes, natural disasters and transport locks as well as other circumstances beyond the control of the contractor release the contractor from the obligation to deliver or allow him 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, he has the right to charge a cancellation fee in the amount of 30% of the not yet invoiced order value of the entire project in addition to the services provided and the costs incurred.
8.1. The contractor warrants that the software will perform the functions described in the associated documentation, provided the software is used on the operating system described in the contract.
The assumption of the defectiveness gem. § 924 ABGB is excluded..
8.2.3 Corrections and additions which prove to be necessary until the agreed performance has been handed over due to organizational and program-related defects attributable to the contractor are carried out by the contractor free of charge.
8.3. Costs for assistance, misdiagnosis as well as error and troubleshooting, which are to be represented by the client as well as other corrections, changes and additions are carried out by the contractor against calculation. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client himself or by third parties.
8.4. Furthermore, the contractor assumes no responsibility for errors, malfunctions or damage due to improper operation, modified operating system components, interfaces and parameters, use of unsuitable means of organization and data carriers, where such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and Transport damage are due.
8.5. For programs that are subsequently changed by the programmer’s own programmers or third parties, any warranty by the contractor is void.
8.6. Insofar as the object of the order is the modification or addition to existing programs, the warranty refers to the amendment or supplement. The warranty for the original program does not come back to life.
8.7. Warranty claims expire six (6) months after handover.
9.1. The contractor is liable to the client for damages demonstrably caused by him only in the case of gross negligence. This also applies mutatis mutandis to damages caused by third parties engaged by the contractor. In the case of culpable personal injury, the contractor is liable without limitation.
9.4. If the contractor performs the work with the help of third parties and in this connection warranty and / or liability claims arise against these third parties, the contractor assigns these claims to the client. In this case, the principal will primarily hold to these third parties.
9.5. If the data backup is expressly agreed as a service, the liability for the loss of data is not excluded from point 9.2, but limited for the restoration of the data up to a maximum of EUR 10% of the order amount per claim, maximum EUR 15,000, -. Any further warranty claims and claims for damages of the customer specified in this contract – on whatever legal grounds – are excluded.
10.1. The contracting parties commit themselves to mutual loyalty. You will refrain from any solicitation and employment, including through third parties, by employees who have worked on the realization of the orders of the other contracting party during the term of the contract and 12 months after termination of the contract. The contracting party, on the other hand, is obliged to pay flat-rate damages amounting to one year’s salary of the employee.
11.1. The contractor commits his employees to comply with the provisions of § 6 of the Data Protection Act.
12.1 Should individual provisions of this contract be or become ineffective, this shall not affect the remaining content of this contract. The contracting parties will cooperate in partnership to find a regulation that comes as close as possible to the ineffective provisions.
13.1 Unless otherwise agreed, the legal provisions applicable between contractors shall apply exclusively in accordance with Austrian law, even if the contract is carried out abroad. For any disputes, only the local jurisdiction of the relevant court for the place of business of the contractor is agreed. For sale to consumers within the meaning of the Consumer Protection Act, the above provisions only apply to the extent that the Consumer Protection Act does not mandate other provisions.
The Association for Business Consulting and Information Technology recommends
Economic-friendly means of dispute mediation following mediation clause:
In the event of disputes arising from this contract, which is not regulated by mutual agreement
be agreed by mutual agreement between the Parties
Settlement of the conflict registered mediators (ZivMediatG) with a focus
To bring in economic mediation from the list of the Ministry of Justice. Should about the
Selection of economic mediators or contentwise no agreement be made
may take legal action at the earliest one month from the failure of the negotiations
In the case of a failed or canceled mediation, applies in one
possible initiated proceedings Austrian law.
All necessary expenses incurred as a result of prior mediation,
especially those for a legal adviser
as agreed in a court or arbitration proceeding as “pre-litigation
Costs’ are claimed.
to the “GENERAL TERMS AND CONDITIONS
for the sale and supply of organizational, programming services and software licenses of software products”
The present terms and conditions are to be understood only as a template for the design of terms and conditions. The provisions contained are suggestions that may be deviated from in individual cases. If a different contract is agreed in a specific contract, it is fundamentally helpful to avoid misunderstandings and to clearly state which provision of the GTC specifically modifies the contractual agreement (eg: “this provision replaced point x of the GTC”). The use of the sample can not replace the accompanying consultation of a legal advisor. The following comments should be noted:
The controller, the processor and their employees are required to keep personal data from data processing entrusted to them or made available to them solely on the basis of their professional employment, without prejudice to other statutory confidentiality obligations, to the extent that there is no legally permissible reason for transmission of the data entrusted or accessible personal data (data secrecy). Employees are to be informed about this and about possible consequences of a breach.
Due to the forthcoming changes by the EU data protection basic regulation and the Austrian data protection adjustment law 2018 (in the future: DSG) it is recommended not to include further data protection clauses directly in the AGB, but to hand over an extra sheet. Care must be taken to ensure that all data protection legal consents are properly obtained and that information obligations are met in good time and in full.
In addition, a contract processing contract is to be concluded when data for the customer is processed in the context of the order (which is to be assumed in this industry). Patterns and More may be found at: www.wko.at/datenschutz or under www.ubit.at .
Attention: According to the nature of the work contract, the contractor is entitled to be represented by other independent third parties during the production of the work. This should be distinguished from the use of – the contractor anyway attributable – own auxiliary staff (such as employees of the contractor).
From a data protection point of view, however, if you wish to pass on data to a sub-processor within the scope of the order, you must have agreed this transfer with the client. This is either regulated in the commission processor contract or in a separate agreement.
The place of jurisdiction must be repeated in the contractual agreement with the customer
be explicitly agreed.