General terms and conditions for the sale and delivery of software support services
September 21st, 2022
1 Scope and Validity of the Contract
1.1 The following terms and conditions apply to all services and deliveries that the Contractor performs under this contract for the computer systems installed in Austria. 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 Scope of Services
2.1 Unless otherwise agreed, the Contractor will perform the services under this contract at its discretion, either at the location of the computer system or at the Contractor’s business premises during the Contractor’s normal working hours. If, in exceptional circumstances and at the Client’s request, services are performed outside of normal working hours, the additional costs will be invoiced separately. The Contractor is responsible for selecting the employee performing the services under this contract and is entitled to engage third parties for this purpose.
2.2 The Contractor undertakes to provide the software programs covered by this agreement in accordance with the scope of services of the respective contractually agreed support class below:
Support Class A:
- Information Service:
The Client will be informed about new program versions, available updates, program developments, etc. - Hotline Service:
The Contractor will be available to the Client during the Contractor’s agreed hotline hours for consultations regarding any problems that may arise in connection with the use of the software programs covered by this agreement. The Contractor is entitled, in the event of repeated requests for this consultation regarding similar problems, to make further consultations covered by this agreement contingent upon additional, chargeable training measures outside the scope of this agreement. - Archiving and Provision of the Software Programs Subject to this Agreement:
The Contractor undertakes to archive the software programs it has developed and which are the subject of this agreement in computer-readable form, as well as the documentation, to the extent necessary to fulfill its obligations under this agreement, and, if necessary, to make this archived software available to the Client in accordance with the provisions of the underlying purchase agreement.
Support Class B:
- Update Service:
The Contractor shall provide the Client with the program updates supplied by the manufacturer on the date specified by the Contractor. These updates include bug fixes, resolution of any program problems that do not occur during trial runs or practical use within the warranty period, improvements to the scope of services, and changes to the software programs due to legal amendments.
Legal amendments that result in new program logic, i.e., changes to existing functions that lead to new programs and program modules, as well as any necessary hardware upgrades, are not covered by this agreement. These programs, along with the necessary data carriers and documentation, will be offered to the Client separately.
Support Class C:
- Installation of Program Updates:
The contractor will install and/or set up new program updates on the computer system covered by this agreement. - On-site Troubleshooting:
If troubleshooting within the scope of services defined in the agreement cannot be resolved via hotline service, remote support, etc., the contractor will perform the troubleshooting on-site at the computer system’s location.
2.3 A defect requiring troubleshooting exists if the software program covered by this agreement exhibits behavior that deviates from the corresponding service description/documentation in its most recent version and this behavior is reproducible by the client.
Complaints regarding defects must be submitted to the contractor in writing. For the purpose of thoroughly investigating any errors that may occur, the client is obligated to provide the contractor, free of charge, with access to the computer system they use (including the corresponding connection in the case of systems connected online to other computers), software programs, logs, diagnostic documentation, and data to a reasonable extent for testing purposes during normal business hours and to support the contractor in this process. Any identified errors attributable to the contractor must be resolved by the contractor within a reasonable timeframe:
- The contractor is released from this obligation if defects attributable to the client prevent this resolution and are not remedied by the client.
- The error will be resolved through a software update or appropriate workarounds.
3 Services Not Covered by this Contract
3.1 Unless explicitly stipulated otherwise in this contract, the contractor shall reimburse the client for travel, accommodation, and travel time costs incurred by the contractor’s personnel assigned to perform the services.
3.2 In the event of unauthorized use of services, the contractor is entitled to invoice the client for the incurred costs at the applicable rates.
3.3 Services necessitated by operating system or hardware changes and/or changes to mutually dependent software programs and interfaces not covered by this contract.
3.4 Individual program customizations or new programming.
3.5 Program changes resulting from changes in legal regulations, if they require a change to the program logic.
3.6 The contractor shall be released from all obligations under this contract if program changes to the software programs covered by this contract are carried out by the client’s employees or third parties without the contractor’s prior consent, or if the software programs are not used as intended.
3.7 Barrier-free design in accordance with the Federal Act on Equal Opportunities for People with Disabilities (Federal Disability Equality Act – BGStG) can be requested separately.
3.8 The correction of errors caused by the client or third parties.
3.9 Losses or damages that arise directly or indirectly from actions or omissions during operation by the client or users.
3.10 Data conversions, data recovery, and interface adjustments.
4 Prices
4.1 The prices quoted are ex works. The costs of data carriers (e.g., magnetic tapes, magnetic disks, magnetic tape cassettes, etc.) as well as documentation and any applicable contract fees will be invoiced separately.
4.2 For services that can be performed at the contractor’s premises but are exceptionally performed at the client’s premises at the client’s request, the client shall bear the costs for travel, accommodation, and travel time for the contractor’s personnel assigned to perform the service.
4.3 The contractor is entitled to Following the conclusion of the contract, the contractor reserves the right to increase the lump sums listed on the reverse side accordingly in the event of increases in wage and material costs or other costs and charges, and to charge the client accordingly from the beginning of the month following the increase. The client shall be deemed to have accepted these increases in advance if they do not exceed 10% annually.
4.4 All fees and taxes (in particular VAT) will be calculated in accordance with the applicable legal regulations. If the tax authorities subsequently impose additional taxes or charges, these shall be borne by the client.
5 Delivery Dates
5.1 The contractor will endeavor to respond to the client’s inquiries within a reasonable timeframe during the contractor’s normal working hours.
5.2 The client is not entitled to withdraw from the contract or claim damages due to exceeding the agreed delivery dates.
5.3 Partial deliveries and advance deliveries are permitted.
6 Payment
6.1 The agreed lump sums are payable by the client in advance for the calendar year/partial year.
6.2 Invoices issued by the contractor are due 14 days after the invoice date without deduction and free of charge.
6.3 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.
6.4 The client is not entitled to withhold payments due to incomplete delivery, warranty claims, or complaints.
7 Contract Duration
7.1 The contractual relationship, which requires the professional installation of the duly acquired software program that is the subject of this contract, begins upon signing the contract and is concluded for an indefinite period. This contract may be terminated in writing by either party with three months’ notice to the end of a calendar year, but not before the end of the 36th month of the contract. If the software program that is the subject of this contract is demonstrably decommissioned or destroyed, the contractual relationship may be terminated prematurely with three months’ notice. In this case, the pro rata portion of the annual fee for the unused portion of the service will be transferred to an Austrian bank account to be specified by the client.
8 Service Disruptions
8.1 The contractor undertakes to provide the services in accordance with the contract. If the contractor fails to provide the services at the agreed-upon times or provides them only defectively, i.e., with significant deviations from the agreed-upon quality standards, the contractor is obligated to begin remedying the defects immediately and to provide the services properly and without defects within a reasonable timeframe by, at its discretion, repeating the affected services or carrying out necessary remedial work.
8.2 If the defectiveness is due to materials or cooperation provided by the client or to a breach of the client’s obligations under clause 3.9, any obligation to remedy the defects free of charge is excluded. In these cases, the services provided by the contractor are nevertheless deemed to have been rendered in accordance with the contract, despite any possible limitations. At the client’s request, the contractor will undertake to remedy the defect for a fee.
8.3 The client will support the contractor in remedying the defects and provide all necessary information. The client must report any defects to the contractor immediately in writing or by email. The client will bear any additional costs incurred in remedying the defects due to a delayed report.
8.4 The warranty period is 6 months. However, claims for defects are only valid if they concern reproducible defects and if they are documented in writing within 4 weeks of delivery of the agreed service. In the event of a warranty claim, rectification always takes precedence over price reduction or contract cancellation. In the case of a justified claim for defects, the defects will be remedied within a reasonable period, whereby the client shall enable the contractor to take all measures necessary for investigation and rectification. The reversal of the burden of proof, i.e., the contractor’s obligation to prove their innocence regarding the defect, is excluded.
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 caused by 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 To the extent and for as long as obligations cannot be fulfilled on time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strikes, lockouts, embargoes, governmental intervention, power outages, failure of means of transport, failure of telecommunications networks or data lines, changes in legislation affecting the services after conclusion of the contract, or other unavailability of products, this does not constitute a breach of contract.
10 Location
10.1 The location of the computer systems covered by this contract is contractually agreed upon. In the event of a change of location of the computer systems, the contractor is entitled to renegotiate the flat-rate fee or terminate the contract prematurely.
11 Copyright and Use
11.1 All copyrights to the agreed services (programs, documentation, etc.) belong to the contractor or its licensors. The client receives the exclusive right to use the software, after payment of the agreed fee, solely for its own purposes, only on the hardware specified in the contract, and to the extent of the number of licenses acquired for simultaneous use on multiple workstations. This contract grants only a license to use the work. Distribution by the client is prohibited under copyright law. The client’s participation in the software’s development 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.
11.2 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.
11.3 Should the disclosure of interfaces be necessary to achieve interoperability of the software in question, the client must request this from the contractor upon reimbursement of costs. If the contractor fails to comply with this request 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.
12 Loyalty
12.1 The contracting parties commit to mutual loyalty. They will refrain from soliciting or employing, even through third parties, any employees of the other contracting party who have worked on the execution of the orders, both during the term of this agreement 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.
13 Confidentiality
13.1 The contractor obligates its employees to comply with the provisions of Section 6 of the Data Protection Act (§ 6 des Datenschutzgesetzes).
14 Final Provisions
14.1 Should any provision of this agreement be or become invalid, the remaining provisions of this agreement shall remain unaffected. The contracting parties will cooperate in good faith to find a provision that comes as close as possible to the invalid provision.
14.2 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 as defined by the Consumer Protection Act, the foregoing provisions apply only to the extent that the Consumer Protection Act does not mandatorily provide otherwise. Failure to comply with essential contractual provisions entitles either party to terminate the contract prematurely without notice.
14.3 Amendments and supplements to this contract must be in writing. This also applies to any waiver of this written form requirement.
14.4 Should one or more provisions of this contract be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision that most closely approximates the economic purpose of the invalid or unenforceable clause.
14.5 Any assignment of rights or obligations arising from this contract requires the prior written consent of the other contracting party. The Contractor is entitled, however, to transfer the contract to a company affiliated with the Contractor under corporate law, even without the Client’s consent.
14.6 The Contractor is entitled to engage third parties to fulfill its obligations, in whole or in part.
14.7 In the event of disputes arising from this contract that cannot be resolved 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. If no agreement can be reached regarding the selection of the commercial mediators or the substance of the mediation, legal action may be initiated no earlier than one month after the failure of negotiations.
14.8 In the event of a failed or terminated mediation, Austrian law shall apply to any subsequent legal proceedings. All necessary expenses incurred as a result of prior mediation, in particular those for any legal advisor consulted, can be claimed as “pre-litigation costs” in court or arbitration proceedings, as agreed.