General Terms and Conditions acolono GmbH
Version 1.1 from 22.03.2017
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 stated in the order confirmation. The Customer'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 without notice.
2. performance and testing
2.1. may be the subject of an order
Development of organizational concepts
Global and detailed analyses
Creation of individual programs
Supply of library (standard) programs
Acquisition of rights of use for software products
Acquisition of licenses for the use of works
Participation in commissioning (changeover support)
Advice by telephone
Creation of program carriers
2.2 The elaboration of individual organisational concepts and programmes shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practice-oriented test data as well as test possibilities to a sufficient extent, which the client provides in due time, during normal working hours and at his own expense. If the client is already working in live operation on the system provided for testing, the client shall be responsible for securing the real data.
2.3 The basis for the creation of individual programs is the written description of services, which the contractor prepares or the customer makes available against a charge on the basis of the documents and information made available to him. This service description is to be checked by the customer for correctness and completeness and to be provided with his approval note. Later change requests can lead to separate date and price agreements. If the Client does not submit or commission a performance specification, the Contractor shall be free to implement the contractual performance within the framework of the rules of technology. If an agile development process is agreed, provisions deviating from points 2.3 and 2.4 may be contractually stipulated.
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 will be confirmed by the customer in a protocol. (Check for correctness and completeness on the basis of the performance specification accepted by the contractor using the test data provided under point 2.2.) If the Customer allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted as of the end date of the said period. If the client uses the software in live operation, the software shall be deemed accepted in any case. Any defects that may occur, i.e. deviations from the performance specifications agreed in writing, must be sufficiently documented and reported by the customer to the contractor, who will endeavour to remedy the defects as quickly as possible. If there are significant defects that have been reported in writing, i.e., if real 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 software due to non-essential defects.
2.5 When ordering library (standard) programs, the client confirms with the order that he is aware 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 in accordance with the performance description is actually or legally impossible according to objective standards, the contractor is obliged to notify the client of this immediately. If the client does not change the service description to this effect or creates the prerequisites for execution to become possible, the contractor can refuse to execute the order. If the impossibility of execution is the result of a failure on the part of the Customer or a subsequent change to the service description by the Customer, the Contractor shall be entitled to withdraw from the order. 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 Program carriers, documentation and service descriptions are shipped at the expense and risk of the customer. Any additional 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) in the sense of the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act - BGStG)" is not included in the offer, unless it has been requested separately or individually by the client. If the barrier-free design has not been agreed upon, the client is responsible for checking the service for its admissibility with regard to the Federal Act on Equal Opportunities for Disabled Persons (Bundes-Behindertengleichstellungsgesetz - BGStG). Likewise, the client must check the content provided by him for its legal, in particular competition, trademark, copyright and administrative law admissibility. The Contractor shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilment of any duty to warn the Customer if such content was provided by the Customer.
3. prices, taxes and fees
3.1 All prices are quoted in Euro without sales tax. They are only valid for the present order. The prices stated are ex business location or place of business of the contractor. The costs of program carriers (e.g. CD's, USB sticks, etc.) as well as any contract fees shall be invoiced separately.
3.2 For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the work involved shall be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based and for which the Contractor is not responsible shall be charged according to the actual time incurred.
3.3 The costs for travel, daily allowance and overnight stay will be invoiced separately to the client according to the rates valid at the time. Travel times shall be considered working time.
3.4 Cost estimates are prepared to the best of our knowledge, but no guarantee can be given for their correctness. Should there be cost increases of more than 15% after the order has been placed, the contractor will inform the client immediately. In case of unavoidable cost overruns of up to 15%, a separate notification is not necessary and these costs can be invoiced without further ado.
3.5 Unless otherwise agreed, order changes or additional orders can be invoiced at reasonable prices.
4. delivery date
4.1 The contractor shall endeavour to meet the agreed dates of performance (completion) as closely as possible.
4.2 The desired performance dates can only be met if the customer provides all necessary work and documents in full by the dates specified by the contractor, in particular the performance specification accepted by him according to point 2.3, and fulfils his obligation to cooperate to the necessary extent. Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed data and information or documents provided are not the responsibility of the contractor and cannot lead to the contractor's default. Any resulting additional costs shall be borne by the Customer.
4.3 In the case of orders which comprise several units or programs, the contractor is entitled to make partial deliveries or issue partial invoices.
5.1 The invoices issued by the contractor, including value added tax, are payable within 14 days of receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment specified for the entire order apply analogously.
5.2 For orders comprising several units (e.g. programs and/or training, realization in partial steps), the contractor is entitled to 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 fulfilment 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 and loss of profit shall be borne by the Customer. In the event of default of payment, interest on arrears shall be charged at the usual bank rate. If two instalments are not paid in instalments, the Contractor shall be entitled to allow the loss of deadlines to come into effect and to demand payment of any acceptances handed over.
5.4 The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.
6. copyright and use
6.1 After payment of the agreed remuneration, Contractor grants 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 Contractor's contract for its own internal use. All other rights remain with the contractor. The cooperation of the Customer in the production of the software does not result in the acquisition of any rights over the use specified in this contract. Any violation of the contractor's copyrights shall result in claims for damages, whereby in such a case full satisfaction must be provided.
6.2 The Customer is permitted to make copies for archiving and data backup purposes under the condition that the software does not contain an express prohibition of the Licensor or third parties and that all copyright and ownership notices are transferred unchanged to these copies.
6.3 Should the disclosure of interfaces be necessary for the production of interoperability of the software in question, the customer shall order this from the contractor against payment of costs. If the Contractor does not comply with this request and decompilation is carried out in accordance with the copyright law, the results are to be used exclusively for the production of interoperability. Misuse shall result in damages.
6.4 If the customer is provided with software whose licence holder is a third party (e.g. standard software from Microsoft), the right of use is granted according to the licence conditions of the licence holder (manufacturer).
7. right of withdrawal
7.1 In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the contractor, the client is entitled to withdraw from the order in question by means of a registered letter, even if the agreed service is not provided in essential parts within the reasonable period of grace and the client is not at fault.
7.2 Force majeure, labour disputes, natural disasters and transport blocks as well as other circumstances beyond the control of the contractor release the contractor from the delivery obligation or allow him to redefine the agreed delivery time.
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 a cancellation fee in the amount of 30% of the unbilled order value of the entire project in addition to the services rendered and accrued costs.
8. warranty, maintenance, changes
8.1 The Contractor warrants that the Software will perform the functions described in the accompanying documentation, provided that the Software is used on the operating system described in the Agreement.
8.2.1 The prerequisite for the elimination of errors is that
- the customer describes the error sufficiently in an error message and this error message is determinable for the contractor;
- the customer provides the contractor with all documents required for the correction of the error;
- Customer or a third party attributable to Customer has not tampered with the software;
- the software is operated under the intended operating conditions according to the documentation.
8.2.2 In case of warranty, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice 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 for examination and remedy of defects. The presumption of defectiveness in accordance with § 924 ABGB (Austrian Civil Code) shall be deemed excluded.
8.2 Corrections and additions that prove necessary until the handover of the agreed service due to organizational and programming deficiencies 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 error and malfunction elimination for which the customer is responsible as well as other corrections, changes and additions will 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 customer himself or by third parties.
8.4 Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage resulting from improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational resources and data carriers, if such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
8.5 Any warranty by the Contractor shall not apply to programs that are subsequently modified by the Customer's own programmers or third parties.
8.6 If the subject of the order is the modification or supplementation of already existing programs, the warranty refers to the modification or supplementation. The warranty for the original program is not revived thereby.
8.7 Warranty claims shall become statute-barred six (6) months after delivery.
9.1 The Contractor shall be liable to the Client for damages for which he is demonstrably responsible only in the event of gross negligence. This also applies analogously to damage attributable to third parties called in by the contractor. In case of culpable personal injury, the contractor is liable without limitation.
9.2 Liability for indirect damages - such as loss of profit, costs associated with an interruption of operations, loss of data or claims by third parties - is expressly excluded.
9.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but at the latest one year after the damage and the party causing the damage have become known.
9.4 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims against these third parties arise in this connection, the Contractor shall assign these claims to the Customer. In this case, the Customer shall 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 point 9.2, but for the restoration of data is limited to a maximum of EUR 10 % of the order amount per case of damage, but not exceeding EUR 15,000. Further warranty and compensation claims of the AG - irrespective of the legal basis - other than those mentioned in this contract are excluded.
10.1 The contracting parties undertake to be loyal to each other. They will refrain from any enticement and employment, also via 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 for 12 months after the termination of the contract. The party to the contract who violates this provision shall be obliged to pay lump-sum damages in the amount of one annual salary of the employee.
11. data protection, confidentiality
11.1 The contractor shall oblige his employees to comply with the provisions of §15 of the Data Protection Act.
12.1 Should individual provisions of this contract be or become ineffective, the remaining content of this contract shall not be affected. The contracting parties shall cooperate in a spirit of partnership in order to find a provision which comes as close as possible to the invalid provision.
13. final provisions
13.1 Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the contractor's place of business shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply to the extent that the Consumer Protection Act does not necessarily provide for other provisions.
This General Terms and Conditions have been translated from the German Original Version, which should be considered as the base version of this document.