General terms and conditions for the sale and delivery of organizational and programming services and licenses for the use of software products

September 21st, 2022

1 Scope and Validity of the Contract

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

2 Services and Review

2.1 The subject of an order may include:

  • Development of organizational concepts
  • Global and detailed analyses
  • Creation of custom programs
  • Delivery of library (standard) programs
  • Acquisition of user licenses for software products
  • Acquisition of licenses for the use of works
  • Assistance with commissioning (conversion support)
  • Telephone consultation
  • Program maintenance
  • Creation of program media
  • Other services

2.2 The development of custom organizational concepts and programs is based on the type and scope of the binding information, documents, and resources provided in full by the client. This includes practical test data and sufficient testing facilities, which the client must provide in a timely manner, during normal working hours, and at their own expense. If the client is already using the system provided for testing in live operation, the client is responsible for backing up the live data.

2.3 The basis for the development of custom programs is the written specification, which the contractor will prepare at the client’s expense based on the documents and information provided, or which the client will provide. The client must review this specification for accuracy and completeness and provide their approval. Subsequent change requests may lead to separate agreements regarding deadlines and pricing.

2.4 Custom-developed software or program adaptations require acceptance testing by the client for each affected program package no later than four weeks after delivery. This acceptance testing will be confirmed by the client in a written protocol. (Verification of accuracy and completeness based on the specification accepted by the contractor, using the test data provided as described in section 2.2). If the client allows the four-week period to elapse without accepting the software, the delivered software is deemed accepted as of the end of that period. The software is also deemed accepted if the client uses it in live operation.

Any defects that may arise, meaning deviations from the written specifications, must be reported by the client to the contractor with sufficient documentation. The contractor will endeavor to rectify the defects as quickly as possible. If significant defects are reported in writing, meaning that live operation cannot commence or continue, a new acceptance procedure is required after the defects have been rectified.

The client is not entitled to refuse acceptance of the software due to minor defects.

2.5 When ordering library (standard) programs, the client confirms their knowledge of the scope of services of the ordered programs with the order.

2.6 Should it become apparent during the course of the work that the execution of the order according to the specifications is factually or legally impossible, the contractor is obligated to inform the client immediately. If the client does not amend the specifications or create the necessary conditions for performance, the contractor may refuse to perform the work. If performance becomes impossible due to negligence on the part of the client or a subsequent amendment to the specifications by the client, the contractor is entitled to withdraw from the contract. The client shall reimburse the contractor for all costs and expenses incurred up to that point, as well as any dismantling costs.

2.7 Shipping of program media, documentation, and specifications is at the client’s expense and risk. Any additional training and explanations requested by the client will be billed separately. Insurance is provided only at the client’s request.

2.8 We expressly point out that barrier-free design (of websites) within the meaning of the Federal Act on Equal Opportunities for People with Disabilities (Federal Disability Equality Act – BGStG) is not included in the offer unless separately/individually requested by the client. If barrier-free design has not been agreed upon, it is the client’s responsibility to verify the service for its admissibility in this regard.

3 Prices, Taxes, and Fees

3.1 All prices are in euros and exclude VAT. They apply only to this specific order. The prices quoted are ex works (EXW) the contractor’s place of business. The costs of data carriers (e.g., CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) and any applicable contract fees will be invoiced separately.

3.2 For standard library programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion support, telephone support, etc.), the work performed will be billed at the rates valid on the day the service is rendered. Deviations from the time expenditure underlying the contract price, which are not attributable to the contractor, will be billed according to actual time spent.

3.3 Travel, daily, and overnight expenses will be invoiced to the client separately at the applicable rates. Travel time is considered working time.

4 Delivery Date

4.1 The Contractor will endeavor to adhere to the agreed-upon completion dates as closely as possible.

4.2 The target completion dates can only be met if the Client provides all necessary work and documentation in full by the dates specified by the Contractor, in particular the service description accepted by the Client as per Section 2.3, and fulfills their obligation to cooperate to the required extent.

The Contractor is not responsible for delivery delays and cost increases resulting from incorrect, incomplete, or subsequently changed information or documents provided by the Client, and such delays and costs cannot be considered a breach of contract by the Contractor. Any resulting additional costs will be borne by the Client.

4.3 For orders comprising multiple units or programs, the Contractor is entitled to make partial deliveries and issue partial invoices.

5 Payment

5.1 Invoices issued by the Contractor, including VAT, are payable within 14 days of receipt without any deductions or charges. The payment terms stipulated for the overall order apply analogously to partial invoices.

5.2 For orders comprising multiple units (e.g., programs and/or training courses, implementation in stages), the contractor is entitled to invoice upon delivery of each individual unit or service.

5.3 Compliance with the agreed payment dates is a fundamental condition for the contractor’s delivery or fulfillment of the contract. Failure to comply with the agreed payment dates entitles the contractor to suspend ongoing work and withdraw from the contract. All associated costs and lost profits shall be borne by the client.

In the event of late payment, default interest will be charged at the prevailing bank rate. If two installments are missed in the case of partial payments, the contractor is entitled to declare the entire outstanding amount due and payable and to demand immediate payment of any accepted bills of exchange.

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

6 Copyright and Usage

6.1 Upon payment of the agreed fee, the Contractor grants the Client a non-exclusive, non-transferable, non-sublicensable, and perpetual right to use the software on the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on multiple workstations, and to use all work results created by the Contractor under this contract for the Client’s own internal use. All other rights remain with the Contractor.

The Client’s participation in the development of the software does not grant any rights beyond those specified in this contract. Any infringement of the Contractor’s copyrights will result in claims for damages, in which case full compensation must be provided.

6.2 The Client is permitted to make copies for archiving and data backup purposes, provided that the software does not contain an explicit prohibition from the licensor or third parties, and that all copyright and proprietary notices are transferred unchanged to these copies.

6.3 Should the disclosure of interfaces be necessary for the interoperability of the software in question, the client shall commission the contractor to do so at the client’s expense. If the contractor fails to comply with this requirement and decompilation occurs in accordance with copyright law, the results may only be used for the purpose of achieving interoperability. Misuse will result in claims for damages.

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 is governed by the license terms of the license holder (manufacturer).

7 Right of Withdrawal

7.1 In the event of a delay in delivery due solely to the fault or unlawful conduct of the contractor, the client is entitled to withdraw from the contract by registered letter if the agreed service is not substantially rendered even within a reasonable grace period and the client is not at fault.

7.2 Force majeure, labor disputes, natural disasters, and transport disruptions, as well as other circumstances beyond the contractor’s control, release the contractor from the delivery obligation or entitle them to a new delivery date.

7.3 Cancellations by the client are only possible with the contractor’s written consent. If the contractor agrees to a cancellation, they have the right to charge, in addition to the services already rendered and costs incurred, a cancellation fee of 30% of the outstanding order value of the entire project.

8 Warranty, Maintenance, Modifications

8.1 The contractor warrants that the software will perform the functions described in the accompanying documentation, provided the software is used on the operating system described in the contract.

The prerequisite for troubleshooting is that:

  • the client adequately describes the error in an error message that is identifiable by the contractor;
  • the client provides the contractor with all documentation necessary for troubleshooting;
  • The client or a third party attributable to the client has not made any modifications to the software;
  • the software is operated under the intended operating conditions in accordance with the documentation.

8.2.2 In the event of a warranty claim, rectification shall always take precedence over price reduction or rescission of the contract. In the case of a justified complaint regarding defects, the defects will be remedied within a reasonable period, whereby the client shall enable the contractor to take all measures necessary for the investigation and rectification of the defects.

The presumption of defectiveness pursuant to Section 924 of the Austrian Civil Code (ABGB) is hereby excluded.

8.2.3 Corrections and additions that prove necessary before delivery of the agreed service due to organizational and programming defects attributable to the contractor will be carried out by the contractor free of charge.

8.3 Costs for assistance, misdiagnosis, and troubleshooting for errors and malfunctions attributable to the client, as well as other corrections, changes, and additions, will be charged by the contractor. This also applies to the rectification of defects if program changes, additions, or other modifications have been made by the client or by a third party.

8.4 Furthermore, the contractor assumes no liability for errors, malfunctions, or damages resulting from improper operation, modified operating system components, interfaces, and parameters, or other issues.

8.5 Any warranty provided by the contractor is void for programs subsequently modified by the client’s own programmers or by third parties.

8.6 If the subject of the contract is the modification or enhancement of existing programs, the warranty applies only to the modification or enhancement. The warranty for the original program is not reinstated.

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

9 Liability

9.1 The Contractor shall be liable to the Client for damages demonstrably caused by the Contractor only in cases of gross negligence. This also applies analogously to damages attributable to third parties engaged by the Contractor. In the case of personal injury caused by the Contractor’s negligence, the Contractor shall be liable without limitation.

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

9.3 Claims for damages shall become time-barred in accordance with statutory provisions, but in any event no later than one year after the Contractor becomes aware of the damage and the liable 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 primarily pursue these claims against the third parties.

9.5 If data backup is expressly agreed upon as a service, liability for data loss is not excluded, notwithstanding clause 9.2, but is limited to a maximum of EUR 10% of the contract sum per incident, up to a maximum of EUR 15,000. Any warranty and damage claims of the Client beyond those specified in this contract – regardless of the legal basis – are excluded.

10 Loyalty

10.1 The contracting parties commit to mutual loyalty. They will refrain from soliciting or employing, even through third parties, employees of the other contracting party who have worked on the execution of the orders, both during the term of this contract and for 12 months after its termination. The contracting party violating this provision is obligated to pay liquidated damages in the amount of one year’s salary of the employee in question.

11 Confidentiality

11.1 The Contractor obligates its employees to comply with the provisions of Section 6 of the Data Protection Act (§ 6 des Datenschutzgesetzes).

12 Final Provisions

12.1 Should any provision of this contract be or become invalid, the remaining provisions of this contract shall remain unaffected. The contracting parties shall cooperate in good faith to find a provision that comes as close as possible to the invalid provision.

12.2 Unless otherwise agreed, the statutory provisions applicable to business transactions under Austrian law shall apply exclusively, even if the order is executed abroad. For any disputes, the exclusive jurisdiction of the competent court at the contractor’s place of business is agreed upon. For sales to consumers within the meaning of the Consumer Protection Act, the foregoing provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide otherwise.

12.3 In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties agree to jointly appoint registered mediators (pursuant to the Austrian Civil Mediation Act) specializing in commercial mediation from the list maintained by the Austrian Federal Ministry of Justice for the purpose of out-of-court dispute resolution. Should no agreement be reached regarding the selection of the business mediators or the content of the mediation, legal action will be initiated no earlier than one month after the failure of negotiations.

12.4 In the event of a failed or terminated mediation, Austrian law shall apply in any subsequent legal proceedings. All necessary expenses incurred as a result of prior mediation, including, in particular, those for any legal counsel retained, may be claimed as “pre-litigation costs” in any subsequent court or arbitration proceedings, as agreed upon.