General Terms and Conditions
for the Sale and Delivery of Organizational and Programming Services and Licenses for the Use of Software Products (WKO 2004)

Terms and Conditions as a PDF download

1. Scope of the Contract and Validity

All orders and agreements are legally binding only if they are signed in writing by the Contractor in accordance with the company’s official signature and are binding only to the extent specified in the order confirmation. The Client’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.

2. Performance and Inspection

2.1. The subject matter of an order may be:

• Development of organizational concepts
• Global and detailed analyses
• Development of custom programs
• Delivery of library (standard) programs
• Acquisition of user licenses for software products
• Acquisition of work usage licenses
• Assistance with implementation (migration support)
• Telephone consultation
• Program maintenance
• Creation of program media
• Other services

2.2. The development of customized organizational concepts and programs is based on the nature and scope of the binding information, documentation, and resources provided in full by the Client. This also includes practical test data as well as sufficient testing capabilities, which the Client shall provide in a timely manner, during normal working hours, and at its own expense. If the client is already operating in live mode on the system provided for testing, the responsibility for backing up the live data lies with the client.

2.3. The basis for the development of custom programs is the written scope of work, which the contractor prepares at the client’s expense based on the documents and information provided to the contractor or made available by the client. This scope of work must be reviewed by the client for accuracy and completeness and must be marked with the client’s approval. Requests for changes arising at a later date may result in separate agreements regarding deadlines and prices.

2.4. Custom-developed software or program adaptations require program acceptance by the Client for the respective program package no later than four weeks after delivery. This acceptance is confirmed by the Client in a written report. (Verification of accuracy and completeness based on the service description accepted by the Contractor using the test data provided as specified in Section 2.2.) If the Client allows the four-week period to elapse without program acceptance, the delivered software shall be deemed accepted as of the end date of the aforementioned period. In any case, the software shall be deemed accepted upon its use by the Client in live operation.

Any defects that may arise—that is, deviations from the written service description—must be reported by the Client to the Contractor with sufficient documentation, and the Contractor shall endeavor to remedy the defects as quickly as possible. If there are significant defects reported in writing—meaning that live operation cannot be started or continued—a new acceptance is required after the defects have been remedied.

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 with the order that they are aware of the scope of services of the ordered programs.

2.6. Should it become apparent during the course of the work that the execution of the order in accordance with the scope of services is factually or legally impossible, the Contractor is obligated to notify the Client immediately. If the Client does not amend the scope of services accordingly or create the conditions necessary for execution to be possible, the Contractor may refuse to perform the work. If the impossibility of execution results from a failure on the part of the Client or a subsequent change to the scope of services by the Client, the Contractor is entitled to withdraw from the contract. 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. The shipment of program media, documentation, and service specifications shall be at the Client’s expense and risk. Any additional training and explanations requested by the Client shall be invoiced separately. Insurance shall be provided only at the Client’s request.

3. Prices, Taxes, and Fees

3.1. All prices are quoted in euros and exclude value-added tax. They apply only to this order. The prices quoted are ex-works from the Contractor’s place of business or business location. The costs of program media (e.g., CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees will 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, migration support, telephone consultation, etc.), the labor costs will be billed at the rates valid on the day the service is provided. Any deviations from the time estimate underlying the contract price that are not attributable to the Contractor will be billed based on actual costs incurred.

3.3. Travel, daily allowance, and lodging expenses will be invoiced separately to the Client at the applicable rates. Travel time counts as working time.

4. Delivery Date

4.1. The Contractor shall endeavor to adhere as closely as possible to the agreed dates of performance (completion).

4.2. The targeted completion dates can only be met if the Client provides all necessary work and documents in full by the dates specified by the Contractor, in particular the scope of services accepted by the Client pursuant to Section 2.3, and fulfills its obligation to cooperate to the extent required.

Delays in delivery and cost increases resulting from incorrect, incomplete, or subsequently altered specifications and information, or from documents provided, are not the responsibility of the Contractor and cannot lead to a delay on the part of the Contractor. Any resulting additional costs shall be borne by the Client.

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

5. Payment

5.1. Invoices issued by the Contractor, including sales tax, are payable without any deductions and free of charges no later than 14 days after receipt of the invoice. For partial invoices, the payment terms established for the entire order apply analogously.

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

5.3. Compliance with the agreed payment deadlines constitutes an essential condition for the Contractor’s performance of the delivery or fulfillment of the contract. Failure to make the agreed payments entitles the Contractor to suspend ongoing work and to withdraw from the contract. All associated costs as well as loss of profit shall be borne by the Client.

In the event of late payment, default interest shall be charged at the standard bank rate. If two installments are not paid in the case of partial payments, the Contractor is entitled to declare the contract terminated for failure to meet deadlines and to declare any bills of exchange handed over due and payable.

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

6. Copyright and Use

6.1. All copyrights to the agreed-upon services (programs, documentation, etc.) belong to the Contractor or its licensors. Upon payment of the agreed-upon fee, the Client is granted exclusively the right to use the software solely for its own purposes, only on the hardware specified in the contract, and to the extent of the number of licenses purchased 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 creation of the software does not confer any rights beyond the use specified in this contract. Any infringement of the Contractor’s copyrights shall give rise to claims for damages, in which case full compensation must be provided.

6.2. The Client is permitted to make copies for archival and data backup purposes, provided that the software does not contain any express prohibition by the licensor or third parties, and that all copyright and ownership notices are transferred to these copies unchanged.

6.3. Should the disclosure of interfaces be necessary to achieve interoperability of the subject software, the Client must commission this from the Contractor in exchange for reimbursement of costs. If the Contractor fails to comply with this request and decompilation is carried out in accordance with copyright law, the results may be used exclusively for the purpose of achieving interoperability. Any misuse shall result in claims for damages.

7. Right of Withdrawal

7.1. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful conduct of the Contractor, the Client is entitled to withdraw from the relevant order by registered letter if, even within a reasonable grace period, the agreed service is not performed in material respects and the Client is not at fault for this.

7.2. Force majeure, labor disputes, natural disasters, and transport restrictions, as well as other circumstances beyond the Contractor’s control, release the Contractor from the delivery obligation or permit the Contractor to reschedule the agreed-upon delivery time.

7.3. Cancellations by the Client are only possible with the Contractor’s written consent. If the Contractor agrees to a cancellation, it shall be entitled to charge, in addition to the services rendered and costs incurred, a cancellation fee amounting to 30% of the outstanding order value of the entire project.

8. Warranty, Maintenance, Modifications

8.1. Notices of defects are valid only if they concern reproducible defects and if they are documented in writing within 4 weeks of delivery of the agreed-upon service or, in the case of custom software, following program acceptance in accordance with Section 2.4. In the event of a warranty claim, rectification shall in any case take precedence over a price reduction or rescission. In the event of a justified complaint, the defects shall be remedied within a reasonable period, whereby the Client shall enable the Contractor to take all measures necessary for investigation and rectification.

The presumption of defectiveness pursuant to § 924 ABGB is deemed excluded.

8.2. Corrections and additions that prove necessary prior to the delivery of the agreed-upon service due to organizational and technical program defects for which the Contractor is responsible shall be carried out by the Contractor free of charge.

8.3. Costs for assistance, misdiagnosis, and the rectification of errors and malfunctions for which the Client is responsible, as well as other corrections, changes, and additions, shall be carried out by the Contractor for a fee. This also applies to the rectification of defects if program changes, additions, or other interventions have been made by the Client itself or by a third party.

8.4. Furthermore, the Contractor assumes no liability for errors, malfunctions, or damage attributable to improper operation, modified operating system components, interfaces, and parameters; the use of unsuitable organizational tools and data carriers, to the extent such are prescribed; abnormal operating conditions (in particular deviations from installation and storage conditions); or damage incurred during transport.

8.5. The Contractor shall not be liable for any warranty with respect to programs that are subsequently modified by the Client’s own programmers or by third parties.

8.6. To the extent that the subject matter of the order is the modification or supplementation of existing programs, the warranty applies to the modification or supplementation. This does not revive the warranty for the original program.

9. Liability

The Contractor shall be liable for damages to the extent that intent or gross negligence on its part is proven, within the scope of statutory provisions. Liability for slight negligence is excluded.

Compensation for consequential damages and financial losses, lost savings, lost interest, and damages arising from third-party claims against the Contractor is excluded in all cases, to the extent permitted by law.

10. Loyalty

The contracting parties undertake to act in good faith toward one another. They shall refrain from poaching or employing, including through third parties, employees of the other contracting party who have worked on the execution of the orders during the term of the contract and for 12 months following the termination of the contract. The contracting party in breach of this provision is obligated to pay lump-sum damages in the amount of one year’s salary of the employee.

11. Data Protection, Confidentiality

The Contractor shall require its employees to comply with the provisions of Section 15 of the Data Protection Act.

12. Miscellaneous

Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall cooperate in a spirit of partnership to find a provision that comes as close as possible to the invalid provisions.

13. Final Provisions

Unless otherwise agreed, the statutory provisions applicable between registered merchants shall apply exclusively under Austrian law, even if the contract is performed abroad. For any disputes, the exclusive local jurisdiction of the court with subject-matter jurisdiction for the contractor’s place of business shall be deemed agreed. 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 for other provisions.