Professional Association of Management Consultancy & Information Technology
Wiedner Hauptstraße 63
(Please be aware that this is a translation. The only version of legally-binding Terms & Conditions is to be found here in the German language.)
GENERAL TERMS & CONDITIONS
for the sale and delivery of Organizational and Programming Services and Permission to Use Software Products 2004
1. Contractual Scope and Validity
All orders and agreements are only legally binding if they are drawn up by the contractor in writing and in accordance with company policy, and commit only to the scope specified in the order confirmation. Purchasing conditions of the client are hereby excluded for the transaction and the entire business relationship. All offers are subject to change without notice.
2. Performance and testing
2.1. The subject of an order can be:
– Develop an organizational plan
– Global and detailed analyses
– Creation of individual programs
– Delivery of library (standard) programs
– Acquisition of rights for software products
– Acquisition of permission to use
– Participate in the commissioning (conversion support)
– Telephone advice
– Maintenance program
– Creation of program carriers
– Other services
2.2. The preparation of individual organizational concepts and programs is based on the nature and extent of information, documents and tools provided entirely by the client. This includes sufficient practical test data and test facilities provided by the client during normal working hours and at his cost. If the client is already working in real-time on the system provided for testing, the responsibility for securing the real data lies with the client.
2.3. The bases for the creation of individual programs are the written specifications of service, worked out by contractor at cost, based on the documents and information provided to him by the client. These specifications must be verified and and signed off on by and the client for correctness and completeness. Changes that appear later can result in separate deadline and price agreements.
2.4. Individually-created software or program adaptations require that each affected program be accepted no later than four weeks after delivery by the customer. This is confirmed in a report by the client. (Check for accuracy and completeness on the basis of service description accepted by the contractor in accordance with 2.2. citing provided test data). Should the buyer allow four weeks to pass without accepting the program, the delivered software is considered at the end date of the said period as accepted. If the client uses the software in real operations, in any case the software shall be deemed accepted. Possible defects, i.e. deviations from the written performance specifications, are to be well-documented by the client for the purpose of informing the contractor who in turn shall make every effort to take corrective action as quickly as possible. If serious defects, notified in writing, causing real-time operation to not be started or continued, a renewed acceptance is required after corrective action. The client is not entitled to refuse software because of immaterial defects.
2.5. When ordering library (standard) programs, the customer confirms the order with the knowledge of the scope of performance of the ordered program.
2.6. If it turns out in the course of the work that the execution of the order as specified is actually or legally impossible, the contractor shall notify the customer immediately. If the client does not change the summary accordingly or create the conditions that make execution possible, the Contractor may refuse to execute. If the impossibility of carrying out is the result of a failure of the client or a subsequent change in specifications by the client, the contractor is entitled to cancel the order. The costs and expenses incurred by the contractor for the work to date, as well as any dismantling costs, shall be reimbursed by the client.
2.7. The shipment of programs, documentation and performance specifications shall be at the expense and risk of the client. In addition, any client-requested training and support are billed separately. Insurance will be taken out only at the request of the client.
3. Prices, Taxes and Fees
3.1. All prices are in Euro including VAT. They only apply to this contract. The prices quoted are ex business domicile or branch office of the contractor. The costs of data carriers (eg CD’s, hard disks or other electronic media) as well as any contract fees shall be billed separately.
3.2. For library (standard) programs, list prices valid on the day of delivery apply. All other services (organizational consultancy, programming, training, support during changeover, telephone advisory services) of the workload at the rates prevailing on the date of service delivery will be charged. Deviations from time costs, as based on the contract, which are not attributable to the Contractor, shall be calculated as incurred.
3.3. The costs for travel, per diem, and overnight accommodation are invoiced separately to the client separately according to applicable rates. Travel time is considered as work time.
4.1. The Contractor shall endeavor to meet the agreed dates for (completion) as closely as possible.
4.2. The targeted completion dates can only then be met if the client has provided all the necessary work and documents, in their entirety, on the dates specified by the contractor, in particular the accepted standard of performance description in accordance with 2.3., and fulfills his obligation to cooperate to the extent necessary. Delivery delays and cost increases that result from incorrect, incomplete or subsequently changed data and information or documents provided are not the responsibility of the contractor and cannot lead to delays on the part of the contractor. The resulting additional costs are borne by the customer.
4.3. For orders that include several units or programs, the seller is entitled to make partial deliveries and to submit partial invoices.
5.1. The invoices presented by the contractor are to be paid by the client no later than 14 days following receipt of the invoice, including sales tax and without any deductions or additional charges. For partial invoices, the terms of the total order payment apply to each.
5.2. For orders that include several units (eg, programs and / or training sessions, completion in stages), the Contractor shall be entitled to submit an invoice after delivery of each unit or service.
5.3. Compliance with the agreed payment dates is an essential condition for delivery and for fulfillment of the contract by the contractor. Failure to comply with the agreed payment schedule entitles the seller to discontinue current work and to withdraw from the contract. All related costs and profit shall be borne by the customer. In case of payment default interest in the customary bank will be charged. Non-compliance rates in two installments, the contractor is entitled to have come into force date and to call handed over acceptances payable.
5.4. The client is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.
6. Copyright and Use
6.1. All copyrights on the agreed services (programs, documentation, etc.) belong to the contractor or its licensors. The client obtains only the right to use the software after payment of the agreed remuneration strictly for his own purposes, for simultaneous use on multiple workstations only for the hardware specified in the contract, and to the extent of the purchased number of licenses. With this contract, the client acquires merely the authorization to use the product. Any distribution by the client is not permitted under copyright law. The cooperation of the client in making the software bestows on the client no rights over and above those stipulated in this contract. Any infringement of the copyrights of the contractor results in compensation claims, and in such case full compensation is due.
6.2. The making of copies for archival and backup purposes is permitted to the client on the condition that this is not explicitly prohibited by the licensor or a third party, and that all copyrights and ownership are assigned unchanged to these copies.
6.3. If, to achieve interoperability of the software, the disclosure of the interfaces is necessary, this is to be ordered by the client and reimbursed to the contractor accordingly. If the contractor does not meet this request and carries out decompilation in accordance with copyright law, the results shall be used exclusively to achieve interoperability. Abuse will result in claims for damages.
7. Right of Withdrawal
7.1. In the event of exceeding the agreed-upon delivery period due solely to the fault or the unlawful conduct of the contractor, the client is entitled, by registered letter, to withdraw from the contract in question, albeit within the reasonable extension of the agreed service and the client carries no fault.
7.2. Force majeure, industrial or labor disputes, natural disasters and transportation stoppages or other circumstances which are beyond the control of the client relieve the contractor from the obligation to deliver, or permit him to redetermine the agreed delivery period.
7.3. Cancellations by the client are possible only with the written consent of the contractor. If the contractor agrees to the cancellation, he has the right to charge a cancellation fee in the amount of 30% of unbilled contract value of the total in addition to already rendered services and accrued costs.
8. Warranty, Maintenance, Alterations
8.1. Claims shall be valid only if they relate to reproducible defects and if they are documented in writing within 4 weeks after delivery of the agreed services; or in the case of custom software, after accepting the program in accordance with clause 2.4. In the case of warranty, rectification of defects takes precedence over price reduction or rescission. In the event of a justified claim, defects will be corrected within a reasonable period of time, whereby the customer takes all measures to necessary to enable successful investigation and corrective action. The presumption of defectiveness in accordance with § 924 ABGB is ruled out.
8.2. Corrections and additions that become necessary to achieve the agreed-upon performance level due to organizational and programmatic deficiencies, and which are the responsibility of the contractor, are carried out free of charge by the contractor.
8.3. The costs for support provided, diagnosis and error and rectify faults which are the responsibility of the client, as well as other corrections, revisions and additions, are performed at cost by the contractor. This is also true for the correction of errors when program changes, additions or other interventions have been carried out by the client himself or by a third party.
8.4. Furthermore, the contractor assumes no responsibility for errors, malfunctions or damage that can be attributed to improper use, altered operating system components, interfaces and parameters, the use of inappropriate organizational resources and data carriers, abnormal operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment.
8.5. For programs that are subsequently altered by programmers of the client or any third party, there is no warranty by the contractor.
8.6. Insofar as the subject of the order is the revision or extension of existing programs, the warranty covers the revision or extension only. The warranty for the original program does not thereby revived.
The contractor shall be liable for damages insofar as intent or gross negligence can be proven within the scope of the law. Liability for ordinary negligence is excluded. Compensation for consequential damages and financial loss, unachieved savings, loss of interest and damages from any third party claims against the contractor are in any case, to the extent permitted by law, excluded.
The contractual parties agree to mutual loyalty. For the duration of the contract, and for 12 months following termination, they refrain from hiring or employing in any way, shape or form, including through third parties, employees who have worked on the implementation of the orders of the other party. The contractual partner in violation of this clause is required to pay to the other party liquidated damages in the amount of one annual salary of the employee.
11. Privacy, Confidentiality
The contractor shall require its employees to observe the provisions of §15 of the Data Protection Act.
Should any provision of this Agreement be or become ineffective, then the remaining terms of this Agreement shall not be affected. The parties will work together in partnership to find an arrangement that comes closest to the invalid provisions.
13. Final Provisions
Unless otherwise agreed, the applicable statutory provisions between registered merchants apply only in accordance with Austrian law, even if the order is carried out abroad. In the case of any disputes, the local jurisdiction of the competent court for the seat of the contractor is agreed upon by both contractual parties. The preceding provisions shall apply only to the extent that the Consumer Protection Act does not prescribe any other regulations for the sale to consumers under the Consumer Protection Act.