(in accordance with the proposal of the Austrian Chamber of Commerce’s Professional Association for Information Technology)
1. Contract Scope and Validity
All orders and agreements are only then legally binding, when they have been signed by an authorized representative of the seller and they obligate only to the extent set forth in the order confirmation. Purchase conditions or other conditions of the buyer shall be excluded from the objective legal transaction and the total business deal . Offers are in principle subject to change and without obligation.
2. Performance and Inspections
2.1. The subject of an order can be:
- Development of organizational concepts
- Global and detail analyses
- Development of individual programs
- Delivery of library (standard) programs
- Acquisition of rights to use software products
- Purchasing non-exclusive licenses for the use of software products
- Commissioning support (adjustment support)
- Telephone consultation
- Program maintenance
- Creation of program carriers
- Other services
2.2. Individual organization concepts and programs will be developed in accordance with and to the extent set out in the binding information, documents and auxiliary materials the customer has timely and completely made available. These materials include also practical test data and sufficient test options which will be made available by the buyer in due time during normal working hours and at his cost and expense. If the system made available for tests is already in live operation and used by the buyer, the buyer shall be responsible for the backup of live data.
2.3. The basis for creating custom-designed programs shall be the written performance specifications that either are provided by the buyer or that the seller writes, at charge to the buyer, on the basis of documentation and information provided to him by the buyer. This performance catalog is to be inspected by the buyer for correctness and completeness and is to be initialed by him as a sign of his assent. Requests for modifications which are made thereafter can result in separate deadline and price agreements.
2.4. For individually created software or program adaptations, it is required that each program be accepted by the buyer at the latest four weeks after delivery by the seller. This approval has to be confirmed in a protocol by the buyer. (inspection for correctness and completeness in line with the performance specifications accepted by the seller on the basis of the provided test data mentioned under 2.2). Should the buyer allow four weeks to pass without accepting the program, the delivered software shall be deemed to have been accepted at the last the of the stated time period. If the buyer uses the software in real-time operations, the software is thereby deemed to have been accepted by the buyer.
If there are any defects, deviations from the agreed written service description, the client informs and documents emerging problems in a written form to the seller to remedy the defects efficiently. In the case of material defects, which have been reported in writing, i.e. defects due to which commencement or continuation of operation is not possible, a renewed acceptance of the work following correction of the deficiency is required. The buyer does not have the right to refuse software because of immaterial defects.
2.5. When library (standard) programs have been ordered, the buyer confirms by virtue of the order his knowledge of the scope of performance of the ordered program.
2.6. Should it prove in the course of the work to be impossible, actually or legally, to complete the order in line with the performance specifications, it is the responsibility of the seller immediately to inform the buyer thereof. If the buyer does not change the performance specifications accordingly or create the conditions to make completion of the order possible, the seller can reject performance of the order. If the impossibility of carrying out the order is due to an omission on the part of the buyer or to a later change by the buyer in the performance specifications, the seller is entitled to withdraw from the order. The buyer is to reimburse the seller’s costs and fees that have come due for the work as well as any dismantling costs.
2.7. The shipment of program carriers, documentation, and performance specifications shall be at the expense and risk of the buyer. Should the buyer wish further training and elucidation, these will be billed separately. Insurance will be taken out only at the request of the buyer.
3. Prices, Taxes and Fees
3.1. All prices are in Euro and do not include sales tax. They are valid only for the present order. The quoted prices are ex business domicile or branch office of the seller. The costs of program carriers (e.g. USB-sticks, CD’s, hard drives, streamer tapes, etc.) as well as any contract fees will be invoiced separately.
3.2. For library (standard) programs the valid prices are the list prices in effect on the day of delivery. All other services (organizational consultancy, programming, training, support during changeover, telephone advisory services) will be charged at the rates in effect on the day services are performed. Contract price deviations related to the expenditure of time, which is not represented by the seller, invoice will reflect actual costs/expenses.
3.3. The costs for travel, per diem, and overnight accommodation costs shall be invoiced separately to the buyer according to the valid respective rates. Travel times shall be deemed working hours.
4. Date of Delivery
4.1. The seller is to endeavor to keep as closely as possible to the agreed dates for completion of the order.
4.2. The intended dates of performance can only be met, if the buyer places all necessary work and documents, especially the confirmed performance specification, in their entirety at the seller’s disposal at the established dates and if the buyer fulfills its obligation to cooperate to the extend required. Supply delays or cost increases arising through incorrect, incomplete, late or subsequently modified disclosures and information or documents made available, are not the responsibility of the seller and cannot result in the seller’s being in default of delivery. Additional costs so arising are to be borne by the buyer.
4.3. In the case of orders that encompass a number of units or programs, the seller is entitled to make partial deliveries and to submit partial invoices.
5.1. The invoices submitted by the seller, inclusive of sales tax, are payable at the latest 14 days from receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment for the entire order obtain analogously.
5.2. Where orders encompass a number of units (e.g., computer programs and/or training sessions, completion in stages), the seller is entitled to submit an invoice after the delivery of each unit or service.
5.3. Payment on the agreed-upon dates is an essential condition for delivery and for fulfillment of the contract by the seller. Failure on the part of the buyer to comply with the agreed payment schedule entitles the seller to discontinue current work and to withdraw from the contract. All costs connected therewith as well as loss of profit are to be borne by the buyer. During payment delays, default interest (EURIBOR plus 800 basis points ) is charged. In case two consecutive installments are not paid on time, the seller has the right to enforce non-compliance and to call accepted drafts.
5.4. The buyer is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.
6. Copyright and Use
6.1. The seller or his licensors are entitled to all copyrights on the agreed services (programs, documentation, etc.). The buyer obtains only the right to use the software after payment of the agreed remuneration strictly for his own purposes, only with the hardware as specified in the contract, and, in accordance with the number of licenses acquired, simultaneously at different workplaces.
By this contract the buyer acquires merely the authorization to use the software. Further distribution of the product by the buyer is not permitted, as per the copyright law. The buyer does not by virtue of participating in the production of the software acquire any rights beyond its use as set forth in this contract. Any infringement of the copyrights of the seller will result in the right to claim damages, in which case the seller is entitled to full satisfaction.
6.2. The buyer is permitted to make copies for archival and data backup purposes only on condition that the software does not contain an express prohibition on the part of the licensor or a third party and that all notices of copyright and ownership are transferred unchanged into these copies.
6.3. Should the disclosure of the interfaces be necessary to produce the interoperability of the software covered by this contract, the seller is to request this of the buyer with remuneration of costs. If the seller does not comply with this stipulation and decompilation follows in accordance with copyright law, the results are to be used exclusively for the production of interoperability. Misuse will result in claims for damages.
7. Right of Withdrawal
7.1. Should the agreed-on date of a delivery be exceeded due solely to the fault or the unlawful conduct of the seller, the buyer is entiteld to cancel the contract in question by registered letter, if essential parts of the agreed service are not performed within a reasonable grace period and the buyer is in no way at fault.
7.2. Force majeure, work conflicts, natural catastrophes, and transportation stoppages, as well as other circumstances that cannot be influenced by the seller, relieve the seller of the obligation to deliver or permit him to redetermine the agreed delivery period.
7.3. Cancellation by the buyer is only possible with the written agreement of the seller If the seller agrees to the cancellation, he is entitled to charge not only for services rendered and accrued costs, but also a cancellation fee that represents 30% of the value of the total order not yet settled.
8. Warranty, Maintenance, Modifications
8.1. Notices of defects are valid only if they concern defects that are reproducible and if they are submitted within 4 weeks after delivery of the agreed service or, in the case of custom-designed software, after acceptance of the program in accordance with point 2.4 and documented in writing. In case of warranty, the improvement has precedence over a price reduction or redhibition. If the notice of defects is justified, the defects are to be remedied within an appropriate period of time, and the buyer is to make available to the seller all measures required by the latter to investigate the problem and remedy the defects. The presumption of defectiveness in accordance with § 924 of the ABGB is ruled out.
8.2. Revisions and additions, which, before the agreed work is handed over, prove to be necessary because of organizational deficiencies or technical deficiencies in the program, and for which the seller bears responsibility, are to be carried out free of charge by the seller.
8.3. The costs for support provided, diagnosis of errors, remedying defects and failures that are the responsibility of the buyer as well as other corrections, revisions and additions are to be carried out by the seller and the costs charged to the buyer. This is also the case for the remedying of errors when program revisions, additions or other interventions have been carried out by the buyer himself or a third party.
8.4. Furthermore, the seller assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organizational resources and data carriers, insofar as these are stipulated, unusual 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 buyer or by third parties, any existing warranty of the contractor is no longer applicable.
8.6. Insofar as the subject of the order is the revision or supplementation of existing programs, the warranty covers the revision or supplementation. The warranty for the original program does not thereby again come into effect.
The seller shall be liable for all damages, provided it can be proven that damages were caused by intent or gross negligence, in accordance with statutory regulations. Any liability for slight negligence is excluded.
Compensation for consequential damages and financial loss, not realized savings, loss of interest, and damages arising from third-party claims against the contractor is in every case, to the extent legally permissible, ruled out.
The partners to the agreement are obligated to reciprocal loyalty. They will not, either themselves or through third parties, solicit and employ employees of the other party, who have worked on the realization of the contracts, during the term of the contract and for 12 months after termination of this contract. The party violating the obligation shall pay lump sum compensation, amounting to a year salary of such an employee.
11. Data Protection, Confidentiality
The seller obligates his employees to observe the provisions of §15 of the Data Privacy Law.
Should individual provisions of this contract be or become inoperative this will not affect the remaining terms of this contract. The contracting parties shall co-operate as partners in order to find a provision which comes as close as possible to the ineffective provisions.
13. Final Provisions
Unless agreed differently, the statutory provisions applicable to full merchants shall exclusively apply according to Austrian law, even in the case of execution of the order abroad. For potential disputes applies only the local competency of the objective responsible court for the place of business of the service provider as agreed.