General Terms and Conditions (GTC)
1. General principles / scope of application
1.1 All legal transactions between the client and the contractor (management consultant) are subject exclusively to these General Terms and Conditions. The version valid at the time of the conclusion of the contract is decisive in each case.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, even if no express reference is made to them in additional contracts.
1.3 Conflicting general terms and conditions of the client are invalid, unless these are expressly accepted in writing by the contractor (management consultant).
1.4 In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes as close as possible to its meaning and economic purpose.
2. Scope of the consulting assignment / representation
2.1 The scope of a specific consulting assignment is contractually agreed in each individual case.
2.2 The contractor (management consultant) is entitled to have all or part of the tasks incumbent upon him performed by third parties. Payment of the third party shall be made exclusively by the contractor (management consultant) himself. No direct contractual relationship of any kind whatsoever shall arise between the third party and the client.
2.3 The client undertakes not to enter into any kind of business relationship with persons or companies whose services the contractor (management consultant) uses to fulfil his contractual obligations during and until three years after termination of this contractual relationship. In particular, the client shall not commission these persons and companies with such or similar consulting services as are also offered by the contractor (management consultant).
3. Duty of the client to inform / declaration of completeness
3.1 The client shall ensure that the organisational framework conditions at his place of business allow work to be carried out as undisturbed and conducive to the rapid progress of the consulting process as possible when the consulting order is fulfilled.
3.2 The client shall also inform the contractor (management consultant) comprehensively about previously conducted and/or ongoing consultations – also in other specialist areas.
3.3 The client shall ensure that all documents necessary for the performance and execution of the consulting assignment are submitted to the contractor (management consultant) in a timely manner and that he is informed of all processes and circumstances that are of importance for the execution of the consulting assignment, even without the contractor’s special request. This also applies to all documents, processes and circumstances that only become known during the consultant’s work.
3.4 The principal shall ensure that his employees and any employee representatives (works council) provided for by law and set up by law are informed of the contractor’s (management consultant’s) activities even before they commence.
4. Securing independence
4.1 The contracting parties commit themselves to mutual loyalty.
4.2 The contracting parties undertake mutually to take all precautions that are suitable to prevent the independence of the commissioned third parties and employees of the contractor (management consultant) from being endangered. This applies in particular to offers of the client for employment or the acceptance of orders for his own account.
5. Reporting / reporting obligation
5.1 The contractor (management consultant) undertakes to report on his work, that of his employees and, if applicable, also that of the commissioned third parties in accordance with the progress of the work to the client.
5.2 If a final report or reconditioning has been agreed in the offer, the client will receive it within a reasonable time, i.e. one to six weeks, depending on the type of consulting order, after completion of the order.
5.3 The contractor (management consultant) is free from instructions in the production of the agreed work, acts at his own discretion and on his own responsibility. He is not bound to any particular place of work or working time.
6. Protection of intellectual property
6.1 The copyrights to the works created by the contractor (management consultant) and his employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, programmes, performance specifications, drafts, calculations, drawings, data carriers etc.) shall remain with the contractor (management consultant). They may be used by the client during and after termination of the contractual relationship.
GTC Software Development
1. Scope of contract and validity
1.1 All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company and are only binding to the extent specified in the order confirmation. The client’s terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are always non-binding.
2. Performance and testing
2.1 The subject of an order may be:
Development of organisational concepts
Global and detailed analyses
Creation of individual programs
Delivery of library (standard) programs
Acquisition of usage rights for software products
Acquisition of licences for use of works
Assistance with commissioning (conversion support)
Creation of program carriers
2.2 The development of individual organisational concepts and programmes shall be based on
Type and scope of binding information, documents and aids provided in full by the client. This also includes practical test data as well as sufficient testing possibilities, which the client provides on time, during normal working hours and at his own expense. If the client is already working in real operation on the system provided for testing, the responsibility for saving the real data lies with the client.
2.3 The basis for the creation of individual programs is the written service description, which the contractor prepares against cost calculation on the basis of the documents and information made available to him and/or the customer makes available. This service description is to be checked by the client for correctness and completeness and to be provided with his approval note. Later requests for changes can lead to separate appointments and price agreements.
2.4 Individually created software or program adaptations require a program acceptance for the respective program package concerned no later than four weeks after delivery by the customer. This is confirmed by the client in a protocol. (Check for correctness and completeness on the basis of the service description accepted by the contractor using the test data provided under item 2.2.). If the customer allows the period of four weeks (or the duration as stated in the offer) to elapse without acceptance of the program, the delivered software shall be deemed to have been accepted on the end date of the said period. If the software is used in real operation by the customer, the software shall in any case be deemed to have been accepted.
Any defects that may occur, i.e. deviations from the service description agreed in writing, must be adequately documented by the customer and reported to the contractor, who will endeavour to remedy the defects as quickly as possible. If significant defects have been reported in writing, i.e. real operation cannot be started or continued, a new acceptance is required after the defects have been rectified.
The customer is not entitled to refuse the acceptance of software due to insignificant defects.
2.5 When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
2.6 Should it become apparent in the course of the work that the execution of the order according to the service description is actually or legally impossible, the contractor is obliged to notify the customer immediately. If the customer does not change the service description to this effect or creates the prerequisite that an execution becomes possible, the contractor can reject the execution. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent amendment of the service description by the customer, the contractor is entitled to withdraw from the order. The costs and expenses incurred by the contractor up to that point as well as any dismantling costs shall be reimbursed by the customer.
2.7 Any dispatch of program carriers, documentation and service descriptions shall be at the expense and risk of the client. In addition, training and explanations requested by the client will be invoiced separately. Insurance will only be taken out at the request of the client.
2.8 We expressly point out that a barrier-free design (of websites) within the meaning of the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act – BGStG)” is not included in the offer, unless this has been requested separately/ individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the admissibility of the service with regard to the Federal Equality of Disabled Persons Act. The client must also check the legal, in particular competition, trademark, copyright and administrative law admissibility of the content provided by him. The contractor is not liable for the legal admissibility of contents in the case of slight negligence or after fulfilment of a possible warning obligation towards the customer, if these were specified by the customer.
3. Prices, taxes and fees
3.1 All prices are in Euro without VAT. They apply only to this order. The prices quoted are ex the contractor’s place of business. The costs of program carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, data sticks, 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, conversion support, telephone consulting, etc.), the workload is charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the contractor is not responsible, shall be calculated according to the actual amount incurred.
3.3 The costs for travel, daily and overnight expenses shall be invoiced to the customer separately according to the respective valid rates. Travel times are considered working hours.
4. Delivery date
4.1 The contractor shall endeavour to meet the agreed deadlines for performance (completion) as precisely as possible.
4.2 The desired performance dates can only be met if the customer provides all necessary work and documents in full on the dates specified by the contractor, in particular the service description accepted by him in accordance with item 2.3 and fulfils his obligation to cooperate to the required extent.
Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed information or documents provided are not the responsibility of the contractor and cannot lead to the contractor’s delay. Any resulting additional costs shall be borne by the customer.
4.3 In the case of orders comprising several units or programs, the contractor is entitled to make partial deliveries or to issue partial invoices.
5.1 Invoices submitted by the contractor including value added tax are payable at the latest 14 days after receipt of the invoice without any deductions and free of charges. The terms of payment specified for the entire order shall apply analogously to partial invoices.
5.2 In the case of orders comprising several units (e.g. programs and/or training, implementations in partial steps), the contractor is entitled to issue an invoice after delivery of each individual unit or service.
5.3 Compliance with the agreed payment dates is an essential condition for the performance of the delivery or performance of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the work in progress and to withdraw from the contract. All associated costs as well as the loss of profits are to be borne by the client.
In the event of default in payment, default interest will be charged at the usual bank rate. In the event of non-compliance with two instalments in the case of partial payments, the Contractor shall be entitled to allow a delay to take effect and to demand payment of the accepted payments.
5.4 The customer is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or defects.
6. Copyright and Use
6.1 After payment of the agreed fee, the contractor grants the customer a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the software for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on several workstations, to use all work results created on the basis of the contractor’s contract for his own internal use. All other rights remain with the contractor.
The Client’s participation in the production of the software shall not give rise to any rights over the use specified in the present contract. Any infringement of the Contractor’s copyrights shall result in claims for damages, in which case full satisfaction shall be payable.
6.2 The client is permitted to make copies for archiving and data backup purposes on condition that the software does not contain an express prohibition by the licensor or third parties and that all copyright and property notices are transferred unchanged into these copies.
6.3 Should the disclosure of the interfaces be necessary for the production of interoperability of the software in question, this shall be commissioned by the customer against reimbursement of costs from the contractor. If the contractor does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively for the establishment of interoperability. Misuse will result in damages.
6.4 If the customer is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the right of use shall be granted in accordance with the license provisions of the license holder (manufacturer).
7. Right of withdrawal
7.1 In the event that an agreed delivery period is exceeded through the sole fault or unlawful action of the contractor, the customer is entitled to withdraw from the relevant order by registered letter if the agreed service is not rendered in essential parts within the reasonable period of grace and the customer is not at fault for this.
7.2 Force majeure, labour disputes, natural disasters and transport disruptions as well as other circumstances beyond the contractor’s control release the contractor from the delivery obligation or allow him to redefine the agreed delivery period.
7.3 Cancellations by the customer are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge, in addition to the services rendered and accrued costs, a cancellation fee in the amount of 30% of the order value of the entire project not yet invoiced.
8. Warranty, maintenance, modifications
8.1 The contractor guarantees that the software fulfils the functions described in the associated documentation, provided that the software is used on the operating system described in the contract.
8.2.1 The prerequisite for error correction is that
the customer describes the error sufficiently in an error message and this can be determined by the contractor;
the customer provides the contractor with all documents required for fault rectification;
the client or a third party attributable to him has not interfered with the software;
the software is operated under the specified operating conditions according to the documentation.
8.2.2 In the event of warranty, improvement shall take precedence over price reduction or conversion in any case. Notices of defects are only valid if they are reproducible defects and if they are documented in writing within 4 weeks after delivery or handover of the agreed service or, in the case of individual software, after program acceptance in accordance with Section 2.4. In the event of justified notification of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary to examine and rectify the defects.
The presumption of defectiveness according to § 924 ABGB is excluded.
8.2.3 Corrections and additions which prove to be necessary until the agreed service is handed over due to organisational 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 as well as fault and fault rectification for which the customer is responsible as well as other corrections, changes and additions shall be carried out by the contractor against payment. This also applies to the elimination of defects if program changes, additions or other interventions have been made by the client himself or by a third party.
8.4 Furthermore, the contractor shall not be liable for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) or transport damage.
8.5 For programs that are subsequently modified by the client’s own programmers or third parties, any warranty by the contractor shall lapse.
8.6 If the subject of the order is the modification or addition of already existing programs, the warranty refers to the modification or addition. This does not revive the warranty for the original program.
8.7 Warranty claims become statute-barred six (6) months after delivery.
9.1 The contractor shall only be liable to the customer for damages demonstrably caused by him in the event of gross negligence. This also applies mutatis mutandis to damages that can be attributed to third parties called in by the contractor. In the event of culpable personal injury, the contractor shall be liable without limitation.
9.2 Liability for indirect damages – such as loss of profit, costs associated with business interruption, loss of data or claims by third parties – is expressly excluded.
9.3 Claims for damages become statute-barred in accordance with the statutory provisions, but at the latest one year after the damage and the injuring party become aware of them.
9.4 If the contractor performs the work with the help of third parties and warranty and/or liability claims against these third parties arise in this connection, the contractor assigns these claims to the principal. In this case, the client will give priority to these third parties.
9.5 If data backup has been expressly agreed as a service, liability for the loss of data is not excluded in deviation from item 9.2, but for the restoration of the data is limited to a maximum of EUR 10 % of the order sum per case of damage, however, a maximum of EUR 15,000.00. Further warranty claims and claims for damages of the Principal than those mentioned in this contract – irrespective of the legal basis – are excluded.
10.1 The contracting parties commit themselves to mutual loyalty. You will refrain from any enticement and employment, also through third parties, of employees who have worked on the realization of the orders of the other contracting party during the duration of the contract and 12 months after termination of the contract. The breaching contractual partner is obliged to pay lump-sum compensation in the amount of the employee’s annual salary.
11.1 The contractor obliges his employees to comply with the provisions of § 6 of the Data Protection Act.
12.1 Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties will work together in partnership to find a provision that comes as close as possible to the invalid provisions.
13. Final provisions
13.1 Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the competent court of Klagenfurt am Wörthersee is exclusively agreed. The above provisions shall only apply to sales to consumers within the meaning of the Consumer Protection Act insofar as the Consumer Protection Act does not necessarily provide for other provisions.
GTC Software as a Service
1.1 The contractor (contractor) shall provide services in information technology and the operation of hardware and software components for the principal (principal) in compliance with the attached Service Level Agreements (SLAs) which form an integral part of the contract.
1.2 These General Terms and Conditions (GC) apply to all present and future services that the contractor provides to the principal, even if no express reference is made to the GC in individual cases when the contract is concluded. The Client’s terms and conditions shall only apply if they have been accepted in writing by the Contractor.
2. Scope of services
2.1 The exact scope of the Contractor’s services is specified in the respective SLA with the Client. Unless otherwise agreed, the Contractor shall provide the services during the Contractor’s normal business hours in accordance with SLA.
The Contractor shall ensure the provision and availability of the services in accordance with the respective SLA.
2.2 The equipment and technology used for the performance of the contractor is based on the client’s qualitative and quantitative performance requirements as determined on the basis of the information provided by the client. If new requirements of the Principal make it necessary to change the services and/or the technology used, the Contractor shall submit a corresponding offer at the Principal’s request.
2.3 The contractor is entitled to change the equipment used to provide the services at his own discretion if no impairment of the services is to be expected.
2.4 Services by the contractor which are used by the principal in excess of the agreed scope of services shall be remunerated by the principal according to actual personnel and material expenses at the rates applicable at the contractor in each case. These include in particular services outside CO’s normal business hours, the analysis and elimination of faults and errors caused by improper handling or operation by CU or other circumstances for which CO is not responsible. Training services are also generally not included in the services and require a separate agreement.
2.5 If the contractor mediates services of third parties at the client’s request, these contracts shall be concluded exclusively between the client and the third party on the respective terms and conditions of the third party. The contractor is only responsible for the services provided by himself.
2.6 We expressly point out that the offer does not include “barrier-free design within the meaning of the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act – BGStG)”, unless this has been requested separately/ individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the admissibility of the service with regard to the Federal Equality of Disabled Persons Act.
3. Duties of the Principal to cooperate and to provide material
3.1 The OP undertakes to support all measures which are necessary for the performance of the services by the CP. Furthermore, the Client undertakes to take all measures which are necessary to fulfil the contract and which are not included in the scope of services of the Contractor.
3.2 If the services are provided on site at the Client’s premises, the Client shall make available free of charge the network components, connections, supply current including peak voltage compensation, emergency power supplies, parking spaces for systems, workplaces and infrastructure (e.g. air conditioning) to the extent and quality required to provide the services by the Contractor. In any case, the Client shall be responsible for compliance with the requirements for the operation of the hardware required by the respective manufacturer. The Client shall also be responsible for room and building security, including protection against water, fire and access by unauthorised persons. The Client is responsible for special safety precautions (e.g. safety cells) in its own premises. The Client shall not be entitled to issue instructions – of any kind – to the Contractor’s employees and shall forward all requests regarding the provision of services exclusively to the contact named by the Contractor.
3.3 The OP shall provide all information, data and documents required by the contractor for the execution of the order in the form requested by the contractor on the agreed dates and at its own expense and shall support the contractor on request in problem analysis and fault rectification, coordination of processing orders and coordination of services. Changes in the Client’s work processes which may cause changes in the services to be provided by the Contractor to the Client shall require prior agreement with the Contractor with regard to their technical and commercial effects.
3.4 Insofar as this is not expressly included in the scope of services of the contractor, the principal shall provide for a grid connection at his own risk and expense.
3.5 The OP is obliged to treat confidentially the passwords and log-ins required by the CP to use the services.
3.6 In addition, the OP shall keep the data and information handed over to the CP in safe custody so that they can be reconstructed at any time in the event of loss or damage.
3.7 The OP shall perform all duties to cooperate incumbent upon it in such a timely manner that the CP is not hindered in the provision of the services. The Client shall ensure that the Contractor and/or the third parties commissioned by the Contractor have the necessary access to the Client’s premises to provide the services.
The Principal is responsible for ensuring that the employees of his affiliated companies involved in the performance of the contract or third parties commissioned by him participate accordingly in the performance of the contract.
3.8 If the OP does not fulfil its duties to cooperate on the agreed dates or to the intended extent, the services rendered by the CP shall nevertheless be deemed to have been rendered in conformity with the contract despite possible restrictions.
Schedules for the services to be provided by CO shall be postponed to a reasonable extent. The Principal shall reimburse the Contractor separately for the additional expenses and/or costs incurred as a result at the rates applicable at the Contractor in each case.
3.9 The OP shall ensure that its employees and any third parties attributable to it carefully handle the equipment and technologies used by the contractor as well as any assets transferred to it; the OP shall be liable to the contractor for any damage.
3.10. Unless otherwise agreed, the Ordering Party shall provide and cooperate free of charge.
4.1 If employees of the OP are taken over by the CP in accordance with the agreements made between the contracting parties, a separate written agreement must be made in this respect.
5. Change Requests
5.1 Both contracting parties may request changes to the scope of services at any time (“Change Request”). However, a desired change must provide a detailed description of the change, the reasons for the change, the impact on scheduling and the costs in order to give the addressee of the change request the opportunity to make an appropriate assessment. A change request becomes binding only with the legally valid signature of both contracting parties.
6. Performance disturbances
6.1 The contractor undertakes to provide the services in accordance with the contract. If the Contractor does not render the services at the scheduled times or only in a defective manner, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to begin remedying the defects immediately and to perform his services properly and free of defects within a reasonable period of time by carrying out the affected services repeatedly or carrying out necessary remedial work at his discretion.
6.2 If the defectiveness is based on provision or cooperation of the OP or on a violation of the obligations of the OP according to item 3.9, any obligation to rectify defects free of charge is excluded. In these cases, the services rendered by the Contractor shall nevertheless be deemed to have been rendered in accordance with the contract despite possible restrictions. At the Client’s request, the Contractor shall remedy the defect at the Client’s expense.
6.3 The OP shall support the contractor in remedying defects and provide all necessary information. The Principal shall immediately report any defects that have occurred to the Contractor in writing or by e-mail. The Client shall bear any additional costs incurred in rectifying the fault due to a delayed notification.
6.4 The provisions of this item apply mutatis mutandis to any deliveries of hardware or software products from CO to CL. The warranty period for such deliveries is 6 months from delivery. 924 ABGB “Presumption of defectiveness” is excluded by mutual agreement. For any hardware or software products of third parties provided by the Contractor to the Client, the respective warranty conditions of the manufacturer of these products shall take precedence over the provisions of this item. Until full payment has been made, the Contractor retains title to all hardware and software products delivered by it.
7. Contractual penalty
7.1 The contractor shall be obliged to comply with the degrees of fulfilment or recovery times specified in the SLA according to priorities. Should the Contractor exceed the time limits specified in the SLA for the recovery, the Contractor shall pay the Client fines per hour or part thereof until actual recovery (performance) in accordance with the SLA:
The above-mentioned penalties per year are limited to 10% of the total annual remuneration. The assertion of a claim for damages going beyond this, unless in case of intent or gross negligence, is excluded.
In the event of exceedances with penalty effect, these are to be brought to the Contractor’s attention in writing without delay.
8.1 The contractor shall only be liable to the customer for damages demonstrably caused by him in the event of gross negligence. This also applies mutatis mutandis to damages caused by third parties called in by the contractor. In the event of culpable personal injury, the contractor shall be liable without limitation.
8.2 Liability for indirect damages – such as loss of profit, costs associated with business interruption, data loss or third-party claims – is expressly excluded.
8.3 Claims for damages become statute-barred in accordance with the statutory provisions, but at the latest one year after the damage and the injuring party become aware of them.
8.4 If the contractor performs the work with the help of third parties and warranty and/or liability claims against these third parties arise in this connection, the contractor assigns these claims to the principal.
8.5 If data backup has been expressly agreed as a service, liability for the loss of data is not excluded in deviation from item 8.2, but for the restoration of the data is limited to a maximum of EUR 10 % of the order sum per case of damage, however, a maximum of EUR 15,000.00. Further warranty claims and claims for damages of the Principal than those mentioned in this contract – irrespective of the legal basis – are excluded.
9.1 The fees and conditions to be paid by the OP result from the contract. The statutory value added tax will be charged additionally.
9.2 Travel times of employees of the contractor are considered as working hours. Travel times are reimbursed at the agreed hourly rate. In addition, travel costs and any overnight expenses shall be reimbursed by the Principal on a time and material basis. Reimbursement of travel and ancillary costs shall be made on presentation of the receipts (copies).
9.3 The contractor is entitled at any time to make the provision of services dependent on down payments or the provision of other securities by the principal in an appropriate amount.
9.4 Unless contractually agreed otherwise, one-off payments after performance are charged quarterly in advance. Invoices issued by the contractor including VAT are payable at the latest 14 days after receipt of the invoice without any deductions and free of charges. The terms of payment specified for the entire order shall apply analogously to partial invoices. Payment shall be deemed to have been made on the day on which the Contractor can dispose of it. If the Principal is in default with his payments, the Contractor shall be entitled to charge the statutory default interest and all costs required for collection. Should the Client’s delay exceed 14 days, the Contractor shall be entitled to discontinue all services. Furthermore, the Contractor shall be entitled to demand immediate payment of the remuneration for all services already rendered, irrespective of any payment deadlines.
9.5 Current remuneration is based on the collective agreement salary of an employee of a company in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).
9.6 The Principal shall only be entitled to set-off with a counterclaim recognised by the Contractor or established by declaratory judgement. The Principal has no right of retention.
9.7 All tax liabilities arising from the contractual relationship, e.g. legal transaction fees or withholding taxes, shall be borne by the Ordering Party.
Should the Contractor be held liable for such charges, the Client shall indemnify and hold the Contractor harmless.
10. Force majeure
10.1 Insofar and as long as obligations due to force majeure, e.g. war, terrorism, natural disasters, fire, strike, lockout, embargo, government intervention, power failure, failure of means of transport, failure of telecommunications networks, or Data lines, legal changes affecting the services after conclusion of the contract or other unavailability of products cannot be fulfilled on time or properly, this does not constitute a breach of contract.
11. Rights of use to software products and documents
11.1 If the OP is provided software products by the contractor or the OP is enabled to use software products within the scope of the services, the OP has the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unchanged form.
11.2 When using software products on a network, a license is required for each simultaneous user. When using software products on “stand-alone PCs”, a license is required for each PC.
11.3 The respective license provisions of the manufacturer of these software products shall take precedence over the provisions of this item for third party software products provided to the OP by CO.
11.4 Unless otherwise agreed, no further rights to software products shall be transferred to the Customer.
The rights of the Principal under Sections 40(d), 40(e) UrhG are not affected by this.
11.5 All documents provided to the OP by CO, in particular the documentation on software products, may neither be duplicated nor distributed in any way against payment or free of charge.
12. Term of the contract
12.1 The contract shall enter into force upon signature by both parties and shall run for an indefinite period. The contract can be terminated by any contracting party by registered letter, subject to a period of notice of 6 months, but no earlier than the end of the minimum term agreed in the contract.
12.2 Each contracting party is entitled to terminate the contract prematurely and without notice for good cause by registered letter. An important reason exists in particular if the other contractual partner violates essential obligations from the contract despite a written warning and threat of termination or if bankruptcy or other insolvency proceedings are applied for, opened or rejected for lack of assets against the other contractual partner or if the services of the other contractual partner are hindered or prevented for a period of more than six months due to force majeure.
12.3 Furthermore, the contractor shall be entitled to terminate the contract prematurely for good cause if significant parameters of the performance have changed and the contractor can no longer reasonably be expected to continue performance from an economic point of view for this reason.
12.4 Upon termination of the contract, the OP shall immediately return to the CP all documents and documentation provided to it by the CP.
12.5 Upon request, the contractor shall support the principal at the end of the contract at the hourly rates applicable at the contractor in the return of the services to the principal or a third party designated by the principal.
12.6 The contract terms of the individual (preliminary) contracts/offer are automatically extended by a further 12 months if they are not terminated 6 months before the end of the minimum contract term. This provision also applies to (preliminary) contracts/offers that have already been automatically renewed.
13. Data Protection / Confidentiality
13.1 When handling personal data, the contractor shall observe the provisions of the Data Protection Act, the DSGVO and the Telecommunications Act and take the technical and organisational measures necessary for data protection in the area of responsibility of the contractor.
In particular, the Contractor undertakes its employees to comply with the provisions of § 6 of the Data Protection Act.
13.2 The contractor is not obliged to check the permissibility of the data processing ordered by the principal in terms of data protection regulations. The permissibility of the transfer of personal data to the Contractor and the processing of such data by the Contractor shall be ensured by the Client.
13.3 The contractor shall take all reasonable measures to protect the data and information of the principal stored at the contractor’s sites against unauthorised access by third parties. However, the Contractor shall not be responsible if third parties nevertheless succeed in obtaining access to the data and information in an unlawful manner.
13.4 By concluding the contract, the OP gives its consent that the data from this business case may also be transmitted to subcontractors who are involved in the processing of this order.
14.1 Each contracting party assures the other to treat all business secrets brought to its knowledge by the other in connection with this contract and its execution as such and not to make them accessible to third parties, unless they are generally known or were already known to the recipient beforehand without any obligation to secrecy, or have been communicated to the recipient by a third party without obligation to secrecy, or to make them available to the recipient. or have been demonstrably independently developed by the recipient, or are to be disclosed on the basis of a legally binding official or judicial decision.
14.2 The subcontractors associated with the contractor shall not be deemed third parties if they are subject to a confidentiality obligation in accordance with this point.
15.1 In the contract, the contracting parties shall appoint knowledgeable and competent employees who can make or arrange for the necessary decisions.
15.2 During the term of the contract and until one year after the end of the contract, the OP shall not entice away any employees employed by the CP to provide the services, neither itself nor through third parties. The Principal undertakes to pay a contractual penalty in the amount of twelve times the gross monthly salary for each offence against the Contractor that the employee concerned last received from the Contractor, but at least the currently valid collective contract salary of an employee of companies in the area of services in automatic data processing and information technology in the experience level for special activities (ST2).
15.3 Amendments and supplements to the contract must be made in writing. This also applies to the abolition of this formal requirement.
15.4 Should one or more provisions of the contract be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid or unenforceable clause.
15.5 Any disposal of the rights or obligations arising from the contract requires the prior written consent of the other contracting party. However, the Contractor shall be entitled to transfer the contract to a company affiliated with the Contractor under group law even without the Client’s consent.
15.6 Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the competent court of Klagenfurt am Wörthersee is exclusively agreed.