1. Scope of contract and validity
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 stated in the order confirmation. The customer’s terms and conditions of purchase are hereby excluded for the present legal transaction and the entire business relationship. Offers are generally subject to change without notice.
2. Performance and testing
2.1. The subject of an order may be:
- Development of organizational concepts
- Global- and detailanalyses
- Creation of individual programs
- Supply of library (standard) programs
- Acquisition of usage rights for software products
- Acquisition of permits for the use of works
- Participation in commissioning (changeover support)
- Telephone consultation
- Program maintenance
- Creation of program supports
- Other services
2.2. The elaboration of individual organisational concepts and programmes are 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 as well as test possibilities to a sufficient extent, which the client makes available on time, during normal working hours and at his own expense. If the client is already working in live operation on the system made available for testing, the client shall be responsible for securing the real data.
2.3. The basis for the creation of individual programs is the written service description, which the contractor prepares or the client provides against cost calculation on the basis of the documents and information made available to him. This service description has to be checked by the client for correctness and completeness and has to be provided with his approval note. Later requests for changes may lead to separate agreements on dates and prices.
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 customer. This will be 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 test data provided under point 2.2). If the Customer allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted as of the end date of the said period. If the client uses the software in live operation, the software shall be deemed accepted in any case.
Any defects that may occur, i.e. deviations from the performance description agreed in writing, must be sufficiently documented by the client and reported to the contractor, who will endeavour to remedy the defects as quickly as possible. If there are significant defects reported in writing, i.e. if the live operation cannot be started or continued, a new acceptance is required after the defect has been remedied. The client is not entitled to refuse the acceptance of software due to minor defects.
2.5. If library (standard) programs are ordered, the customer confirms knowledge of the scope of services of the ordered programs with the order.
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 is obliged to notify the client of this immediately. If the client does not change the service description to this effect or creates the prerequisites for execution to be possible, the contractor can refuse to execute the order. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent change to the service description by the customer, the contractor shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the contractor’s work as well as any dismantling costs shall be reimbursed by the client.
2.7. Program supports, documentation and service descriptions are shipped at the expense and risk of the customer. Any additional training and explanations requested by the client will be invoiced separately. Insurance will only be taken out at the request of the client.
2.8. We expressly point out that a barrier-free design (of websites) in the sense of the “Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act – BGStG)” is not included in the offer, unless it has been requested separately or individually by the client. If the barrier-free design has not been agreed upon, it is the responsibility of the client to check the service for its admissibility with regard to the Federal Disability Equality Act. Likewise, the client must check the contents provided by him for their legal, in particular competition, trademark, copyright and administrative law admissibility. The contractor shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilment of any duty to warn the customer if such content was provided by the customer.
3. Prices, taxes and fees
3.1. All prices are in euro without value added tax. They only apply to the present order. The prices quoted are to be understood ex business location or office 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 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 shall be invoiced 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 the actual time incurred.
3.3. The costs for travel, daily allowances and overnight stays will be invoiced separately to the client according to the respectively valid rates. Travel time is considered as working time.
4. Delivery date
4.1. The contractor shall endeavour to meet the agreed dates of performance (completion) as closely as possible.
4.2. The desired performance deadlines can only be met if the customer provides all necessary work and documents in full, in particular the performance specification accepted by the contractor according to point 2.3, on the dates specified by the contractor and fulfils his obligation to cooperate to the necessary extent. Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed data and information or documents provided are not the responsibility of the contractor and cannot lead to the contractor’s default. Any resulting additional costs shall be borne by the customer.
4.3. In the case of orders comprising several units or programs, the contractor is entitled to make partial deliveries or issue partial invoices.
5.1. The 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. For partial invoices, the terms of payment specified for the entire order shall apply analogously.
5.2. In the case of orders comprising several units (e.g. programmes and/or training courses, implementation in partial steps), the contractor is entitled to 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 the fulfilment of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the ongoing work and to withdraw from the contract. All associated costs and loss of profit shall be borne by the customer. In case of default of payment, default interest will be charged at the usual bank rate. If two instalments are not paid in instalments, the contractor shall be entitled to have the loss of deadlines come into force and to make any accepted bills of exchange handed over due for payment.
5.4. The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.
5.5. Objections to invoiced claims must be raised by the client in writing within 10 days of the invoice date, failing which the claim shall be deemed accepted.
5.6. Objections to the invoice raised by the client do not prevent the due date of the invoice amount, unless it is a matter of objection to obvious errors in the invoice.
5.7. The client may only set off claims of the contractor against claims of the contractor with claims that have been established in court or acknowledged in writing by the contractor.
6. Copyright and use
6.1 All rights derived from patent, trademark, design protection, semiconductor protection and/or copyright law to the agreed services or otherwise from the creation of the services made available to the client are the property of the contractor or its licensors, unless otherwise agreed.
6.2. After payment of the agreed remuneration, contractor shall grant customer only 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 acquired, for simultaneous use on several workstations, to use all work results created on the basis of contractor’s contract for its own internal use. All other rights remain with the contractor. The cooperation of the customer in the production of the software shall not result in the acquisition of any rights over the use specified in this agreement. Any violation of the contractor’s copyrights shall result in claims for damages, in which case full satisfaction shall be provided.
6.3. The client is permitted 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 ownership notices are transferred unchanged to these copies.
6.4. Should the disclosure of interfaces be necessary for the production of interoperability of the software in question, the customer shall order this from the contractor against payment of costs. If the contractor does not comply with this request and decompilation is carried out in accordance with copyright law, the results are to be used exclusively for the production of interoperability. Misuse will result in compensation for damages.
6.5. If the customer is provided with software whose licence holder is a third party (e.g. standard software from Microsoft), the granting of the right of use is based on the licence conditions of the licence 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 is entitled to withdraw from the order in question by registered letter, even if the agreed service is not provided in essential parts within the reasonable grace period and the client is not at fault. The Customer shall not be entitled to any claims for damages against the Contractor due to the withdrawal.
7.2. Force majeure, labour disputes, natural disasters and transport blocks as well as other circumstances beyond the control of the contractor shall release the contractor from the delivery obligation or allow it to redefine 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 unbilled order value of the entire project in addition to the services rendered and accrued costs.
8. Warranty, maintenance, modifications
8.1. The contractor guarantees 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.
8.2.1 The prerequisite for error correction is that
- the client describes the error sufficiently in an error message and this error message is determinable for the contractor;
- the customer provides the contractor with all documents required for the correction of the error;
- customer or a third party attributable to customer has not interfered with the software;
- the software is operated under the intended operating conditions according to the documentation.
8.2.2 In case of warranty, improvement has priority over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the customer shall enable the contractor to take all measures necessary for examination and remedy of the defects. The presumption of defectiveness according to § 924 ABGB is excluded. The contractor is only obliged to provide a warranty if the client has fully met his payment obligations.
8.2.3 Warranty claims of the client require a written and timely notice of defects. The client is obliged to examine the service for defects immediately after it has been performed by the contractor. The same obligation to give notice of defects shall also apply to hidden defects, whereby the obligation to give notice of defects shall be triggered upon discovery of the defect. Defects of a part of the delivery cannot lead to a complaint about the entire delivery. If no complaint is made in due time (within 14 days), the goods shall be deemed to have been approved, which shall exclude the assertion of warranty claims.
8.3. Corrections and additions which prove to be necessary until the handover of the agreed service due to organisational and programming deficiencies for which the contractor is responsible shall be carried out by the contractor free of charge.
8.4. Costs for assistance, misdiagnosis as well as error and malfunction removal for which the client is responsible as well as 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 carried out by the customer himself or by third parties.
8.5. Furthermore, the contractor does not assume any warranty for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, if such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
8.6. For programs that are subsequently modified by the customer’s own programmers or third parties, any warranty by the contractor is void.
8.7. Insofar as the subject of the order is the modification or supplementation of already existing programs, the warranty refers to the modification or supplementation. The warranty for the original program is not revived thereby.
8.8. Warranty claims expire six (6) months after delivery.
9.1. The contractor shall only be liable to the client for damages for which it can be proven that it is responsible in the event of gross negligence. This also applies analogously to damage attributable to third parties called in by the contractor. In the case of culpable personal injury, the contractor is liable without limitation.
9.2. Liability for indirect damages – such as loss of profit, costs associated with a business interruption, loss of data or third-party claims – is expressly excluded.
9.3. 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 damaging party.
9.4. If the contractor performs the work with the assistance of third parties and if warranty and/or liability claims against these third parties arise in this connection, the contractor shall assign these claims to the client. In this case, the customer 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 is not excluded in deviation from point 9.2, but for the restoration of data is limited to a maximum of EUR 10 % of the order amount per case of damage, but not exceeding EUR 15,000. Further warranty and compensation claims of the OP other than those mentioned in this contract – regardless of the legal basis – are excluded.
10.1 During and after the cooperation or use of the software developed by the contractor, the contractor may use the name and/or logo of the client as a reference on websites and in other advertising material. customer may revoke this authorization at any time with a reasonable conversion period.
11.1. The contracting parties undertake to be loyal to each other. They will refrain from any enticement and employment, including via third parties, of employees who have worked on the realisation of the orders, of the other contracting party during the duration of the contract and for 12 months after termination of the contract. The party to the contract who violates this provision shall be obliged to pay lump-sum damages in the amount of one annual salary of the employee.
12. Data protection, secrecy
12.1. The contractor obliges his employees to comply with the provisions of §15 of the Data Protection Act.
13.1 Should individual provisions of this contract be or become ineffective, the remaining content of this contract shall not be affected. The contractual partners will work together in a spirit of partnership to find a provision that comes as close as possible to the invalid provision.
14. Final provisions
14.1 Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the contractor’s place of business shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply to the extent that the Consumer Protection Act does not mandatorily provide for other provisions.