General Terms and Conditions of ICS Information Systems GesmbH

 

ICS Information Systems GesmbH
Storchengasse 1
A-1150 Wien
Tel. +43 1 252 1373 10
Fax +43 1 252 1373 11

office@ics-informationsystems.com

 

based on the General Terms and Conditions of the WKO

 

1. SCOPE AND VALIDITY OF THE CONTRACT

All orders and agreements shall only be legally binding if accepted by the Contractor in writing and shall only be binding to the extent specified in the order confirmation. Terms and conditions of purchase of the client are hereby excluded for the present legal transaction and the entire business relationship. Offers are always subject to change.

 

2. PERFORMANCE AND TESTING

2.1   Subject of the order

The subject of the order may be: Elaboration of organizational concepts, global and detailed analyses, creation of individual programs, delivery of standard software, acquisition of terms of use for software products, acquisition of licenses for the use of works, participation in commissioning (conversion support), telephone consulting, program maintenance, creation of program carriers as well as other services.

2.2   Individual organizational concepts and programs

The development of individual organization concepts and programs shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the Customer. This shall also include practical test data as well as test facilities to a sufficient extent, which shall be made available by the Principal in a timely manner, during normal working hours and at its own expense. If the client is already working on the system provided for testing in live operation, the responsibility for securing the live data lies with the client.

2.3   Creation of individual programs

The basis for the creation of individual programs shall be the written performance specification which the Contractor shall prepare against cost calculation on the basis of the documents and information made available to it or which the Customer shall make available. This performance specification is to be checked by the customer for correctness and completeness and to be marked with his approval. Change requests occurring at a later date may lead to separate changes in deadlines and prices.

Individually created software or program adaptations require a program acceptance by the contractor for the respective program package at the latest four weeks after delivery. If the customer allows this period to elapse, the software supplied shall be deemed to have been accepted. If the software is used in live operation by the Customer, the software shall be deemed to have been accepted in any case. Any defects that occur, i.e. deviations from the service description, shall be reported to the Contractor by the Customer in a sufficiently documented manner, and the Contractor shall endeavor to remedy the defects as quickly as possible. If significant defects are reported in writing, i.e. if live operation cannot be started or continued, the software must be accepted again. The Purchaser shall not be entitled to refuse acceptance of the Software due to immaterial defects.

2.4   Standard Software

When ordering standard software, the Purchaser confirms with the order that it is aware of the scope of performance of the ordered programs.

2.5   Deviation from the performance specification

Should it become apparent in the course of the work that the execution of the order in accordance with the performance specification is not possible in fact or in law, the Contractor shall be obliged to inform the Customer thereof immediately. If the Customer does not change the performance description to such an extent or does not create the prerequisite that an introduction becomes possible, the Contractor may refuse the execution. If the impossibility is the result of a failure on the part of the Customer or a subsequent change to the performance specification by the Customer, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred for the contractor's activities up to that point as well as any

as well as any dismantling costs shall be reimbursed by the client.

 

3. PRICES, TAXES AND DUTIES

All prices are in Euro (unless another currency is indicated) excluding VAT. They apply only to the present order. The prices quoted are ex the contractor's place of business or office. The costs for program carriers (e.g. DVD) as well as any contract fees shall be invoiced separately.

For standard software, the list prices valid on the day of delivery shall apply. For all other services (organizational meetings, programming, training, conversion support, telephone support, etc.), the amount of work shall be invoiced at the hourly rates valid on the day the service is rendered. Deviations from the time expenditure on which the contract price is based, for which the Contractor is not responsible, shall be invoiced according to actual expenditure.

The costs for travel, daily and overnight allowances shall be invoiced separately to the Client according to the hourly rates valid at the time. Travel time shall be considered as working time.

All taxes will be charged on the basis of the respective valid legal situation. If tax authorities subsequently prescribe taxes or duties, these shall be borne by the client.

 

4. DELIVERY DATE

4.1 Date of fulfillment

The Contractor shall endeavor to meet the agreed dates of performance (completion) as closely as possible. The targeted completion dates can only be met if the Customer provides all necessary work and documents in full by the dates specified by the Contractor and fulfills its obligation to cooperate.

4.2 Delay in delivery and partial deliveries

Delays in delivery and increases in costs resulting from incorrect, incomplete or subsequently changed details and information or documents provided shall not be the responsibility of the Contractor and cannot lead to the Contractor being in default. Any additional costs resulting therefrom shall be borne by the Customer. In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries or to issue partial invoices.

 

5. PAYMENT

5.1 Invoicing

Invoices issued by the Contractor including value added tax shall be payable in accordance with the respective terms of payment. For partial invoices, the payment conditions specified for the entire order shall apply.

In case of orders comprising several units (e.g. programs and/or trainings, realization in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or performance of the respective service.

5.2 Payment Dates and Default in Payment

Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfillment of the contract by the Contractor. Non-compliance with the agreed payments entitles the Contractor to stop the current work and to withdraw from the contract. All related costs as well as loss of profit shall be borne by the Client.

In the event of late payment, interest on arrears shall be charged at the rate of 4 % p.a. (§ 1000 ABGB). In the event of non-compliance with two installments in the case of partial payments, the Contractor shall be entitled to assert a loss of time and to call in handed-over acceptances.

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

 

6. COPYRIGHT AND USE

6.1 Copyrights, permission to use the work

The Contractor or its licensors shall be entitled to all copyrights to the agreed services (programs, documentation, etc.). The Customer shall exclusively receive the right to use the software after payment of the agreed remuneration exclusively for its own purposes and to the extent of the licenses acquired. Only a license to use the work is acquired through the present contract. The Customer's participation in the production of the software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the Contractor's copyrights shall result in claims for damages, whereby full satisfaction shall be paid in such a case.

6.2 Copies for Archive and Data Backup Purposes

The Customer shall be permitted to make copies for archiving and data backup purposes on condition that the Software does not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged in these copies.

6.3 Interoperability

If the disclosure of interfaces is required for the creation of interoperability (e.g. data exchange with other software products) of the software in question, the Customer shall request this from the Contractor (against reimbursement of costs). If the Contractor does not comply with this request and decompilation takes place in accordance with the Copyright Act, the results are to be used exclusively to establish interoperability. Misuse will result in compensation for damages.

 

7. RIGHT OF WITHDRAWAL

7.1 Exceeding the agreed delivery time

In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Customer shall be entitled to withdraw from the relevant order by means of a registered letter if the agreed service is not provided in essential parts even within a reasonable grace period and the Customer is not at fault.

Force majeure, labor disputes, natural disasters and transport blockades as well as other circumstances beyond the control of the Contractor shall release the Contractor from the obligation to deliver or allow the Contractor to reschedule the agreed delivery time.

7.2 Cancellation by the Customer

Cancellations by the Customer shall only be possible with the written consent of the Contractor. If the Contractor agrees to a cancellation, the Contractor shall have the right to charge a cancellation fee in the amount of 30% of the unbilled order value of the total project in addition to the services rendered and costs incurred.

 

8. WARRANTY AND LIABILITY

8.1 Warranty

The statutory warranty periods shall apply. After delivery or performance of the agreed service or, in the case of individual software, after acceptance of the program, the notice of defects must be documented in writing. In the 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 carry out all measures necessary for the examination and remedying of defects free of charge. The presumption of defectiveness pursuant to § 924 ABGB shall be deemed excluded.

8.2 Defects caused by the Contractor

Corrections and additions which prove to be necessary until the acceptance of the agreed service due to organizational and program-technical deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.

8.3 Defects caused by the Client

Costs for assistance, error diagnosis as well as error and fault elimination caused by the Principal as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This shall also apply to the elimination of defects if program changes, additions or other interventions have been made by the Customer itself or by third parties.

Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage resulting from improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, abnormal operating conditions (in particular deviations from installation and storage conditions) as well as for those defects which are due to transport damage.

For programs that are subsequently modified by the Customer's own programmers or by third parties commissioned by the Customer, any warranty on the part of the Contractor shall lapse.

8.4 Modification of existing programs

If the subject of the order is the modification or supplementation of already existing programs, the warranty shall refer to the modification or supplementation. The warranty for the original program shall not be revived thereby.

8.5 Liability

The Contractor shall provide the contractually warranted services with the diligence of a prudent businessman - this shall also apply to all services provided by its employees and subcontractors, for whose actions the Contractor shall be liable as for its own actions. The Contractor warrants that the services provided by it are free from third party rights, so that the contractually assured legal positions of the Customer are not impaired by third party rights.

The Contractor shall not be liable for a specific success, but solely for the fact that it provides its services to the best of its knowledge and belief and in accordance with the state of the art. Liability for any damage caused by the Contractor's services shall only exist in the event of gross negligence on the part of the Contractor or his assistants. Any liability for indirect or consequential damage, in particular loss of profit or the like, shall be excluded, unless mandatory statutory provisions expressly provide otherwise. In the event of a claim against the Principal, for whatever reason, the Contractor's liability shall in any case be limited to the amount of the order volume in question; in the event of a continuing obligation (and indeed for a limited or unlimited period), the order volume shall count for the period of one year.

8.6 Control Duties of the Customer

The Customer shall be obliged to monitor the Contractor's performance on an ongoing basis; in the event of irregularities, the Customer shall immediately notify the Contractor thereof in writing. In the event of a claim for damages, if the Customer has not fulfilled its control obligations and the written notification to the Contractor, the Customer shall be partly to blame pursuant to § 1304 ABGB (Austrian Civil Code).

Settings with regard to calculations (social security contributions, sales prices, sales tax, wage formulas, etc.) shall be made exclusively on the instructions of the Client. Liability for incorrect settings based on such instructions is expressly excluded. The assertion of warranty claims and claims for damages shall become statute-barred one year after handover or provision of the service, irrespective of when any claims become known.

8.7 Data loss and data recovery

The Customer shall ensure that suitable precautions are taken to prevent data loss or to enable data recovery (e.g. by means of regular backups).

8.8 Third-party software

No liability shall be assumed for software not developed by the Contractor.

 

9. LOYALITY

The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees who have worked on the realization of the orders, of the other contractual partner for the duration of the contract and 12 months after its termination. The contracting party violating this provision shall be obliged to pay damages to the other contracting party in the amount of one year's salary of the employee.

 

10. DATA PROTECTION AND SECRECY

10.1 Personal data and processing

The Contractor shall store data of the Client electronically in its database for purposes of order fulfillment and further support of the Client. More detailed information can be found in the Client Info in the "Data Protection" section on the Contractor's homepage.

If no purchase contract is concluded, the data of the client (interested party) will be stored for advertising purposes. The client (interested party) has the possibility to have his data deleted by the contractor at any time.

10.2 Passing on of data to third parties

Data shall only be passed on to third parties (e.g. licensors, shipping companies, banks, legal representatives in business cases, auditors, courts in business cases, administrative authorities in business cases, cooperating contractual and business partners, providers (IT service providers), insurance companies in business cases) if this is necessary for the fulfillment of the contract.

10.3 Right to information (Art. 15 DSGVO)

Pursuant to Art. 15 DSGVO, the Client has the right at any time to receive information about all data stored about him by the Contractor. The e-mail address set up for this purpose at the Contractor is:

Jacqueline.Tschabuschnig@ics-informationsystems.com

10.4 Secrecy

The Contractor undertakes to keep the data confidential in accordance with § 6 of the Data Protection Act (DSG) and Art. Art. 28 para. 3 DSGVO in the current version. A separate declaration of confidentiality can be requested from the Contractor.

10.5 Order data processing agreement pursuant to DSGVO.

All information about the processing of personal data can be found in the Order Data Processing Agreement. Should the contractor act as a processor, the commissioned data processing agreement must be signed.

 

11. FINAL PROVISIONS AND SEVERABILITY CLAUSE

Unless otherwise agreed, the legal provisions applicable between fully qualified merchants shall be governed exclusively by Austrian law, even if the order is executed abroad. For any disputes, the local jurisdiction of the court having subject-matter jurisdiction for the Contractor's place of business (Steyr Regional Court) shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide for other provisions.

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