Status of the General Terms and Conditions: 01.07.2023
1. General Terms and Conditions
1.1 The Contractor (Contra) provides information technology services to the Client (Client).
1.2 These General Terms and Conditions shall apply to all current and future services provided by the Contractor to the Client, even if no express reference is made to the General Terms and Conditions in individual cases when the contract is concluded. The Client’s terms and conditions shall only apply if they have been accepted by the Contractor in writing.
2. Scope of services
2.1 The exact scope of the Contractor’s services shall be defined in the respective offer or concept document with the Client.
2.2 The basis of the equipment and technology used for the provision of services by the Contractor shall be the Client’s qualitative and quantitative service requirements as determined on the basis of the information provided by the Client. If new requirements of the Client make it necessary to change the services or the technology used, the Contractor shall submit a corresponding offer at the Client’s request.
2.3 The Contractor shall be entitled to change the equipment used to provide the Services at its own discretion if no impairment of the Services is to be expected.
2.4 Services by the Contractor which are used by the Client beyond the scope of services agreed in each case shall be remunerated by the Client according to the actual personnel and material costs at the rates applicable at the Contractor in each case. This shall include, in particular, services outside the Contractor’s usual business hours, the analysis and elimination of faults and errors which have arisen due to improper handling or operation by the Client or other circumstances for which the Contractor is not responsible.
2.5 The Contractor shall be free to have services performed by third parties.
3. Client’s duty to cooperate and provide
3.1 The Client undertakes to support all measures required for the provision of the Services by the Contractor. The Client further undertakes to take all measures which are necessary for the performance of the contract and which are not included in the Contractor’s scope of services.
3.2 If the Services are provided on site at the Client’s premises, the Client shall provide free of charge the systems, network components, connections, supply current incl. peak voltage equalisation, emergency power supplies, space for equipment, workplaces as well as infrastructure to the required extent and quality (e.g. air conditioning) required for the provision of the Services by the Contractor. In any case, the Client shall be responsible for compliance with the requirements for the operation of the hardware demanded 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 shall be responsible for special security precautions (e.g. security cells) on its premises. The Client shall not be entitled to issue instructions of any kind to the Contractor’s employees and shall address all requests regarding the provision of services exclusively to the contact person named by the Contractor.
3.3 The Client shall provide, on the agreed dates and at its own expense, all information, data and documents required by the Contractor for the performance of the order in the form requested by the Contractor and shall support the Contractor, if requested, in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the work processes at the CL which may cause changes in the services to be provided by the CO to the CL shall require prior coordination with the CO with regard to their technical and commercial effects.
3.4 The Principal shall additionally keep the data and information handed over to the Contractor with him so that they can be reconstructed at any time in the event of loss or damage.
3.5 The Principal shall perform all duties to cooperate incumbent upon it in such a timely manner that the Contractor is not hindered in the performance 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 for the performance of the Services. The Client shall be responsible for ensuring that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract cooperate accordingly in the performance of the contract.
3.6 If the Client does not fulfil his obligations to cooperate on the agreed dates or to the extent provided for, the services provided by the Contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. Schedules for the services to be provided by the Contractor shall be postponed to a reasonable extent. The Client shall separately remunerate the additional expenses and/or costs incurred by the Contractor as a result at the rates applicable to the Contractor at the time.
3.7 The Client shall ensure that its employees and third parties attributable to it treat the equipment and technologies used by the Contractor as well as any assets provided to it with care; the Client shall be liable to the Contractor for any damage.
3.8 Unless otherwise agreed, the Client shall provide materials and services free of charge.
4. Change requests
Both contracting parties may request changes to the scope of services at any time (“Change Request”). However, a requested change must include a precise description of the change, the reasons for the change, the impact on the time schedule and the costs in order to enable the addressee of the change request to make an appropriate assessment. A change request only becomes binding when it is legally signed by both contracting parties.
5. Performance disorders
5.1 The Contractor undertakes to provide the Services in accordance with the contract. If the Contractor does not provide the Services at the scheduled times or only provides them defectively, i.e. with significant deviations from the agreed quality standards, the Contractor shall be obliged to start remedying the defect immediately and to provide its Services properly and free of defects within a reasonable period of time by repeating the affected Services or carrying out any necessary remedial work at its discretion.
5.2 If the defectiveness is based on provisions or cooperation of the Principal or on a breach of the Principal’s obligations, any obligation to remedy the defect free of charge shall be excluded. In these cases, the services provided by the Contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. The Contractor shall, at the Client’s request, undertake to remedy the defect at the Client’s expense.
5.3 The Client shall support the Contractor in remedying the defect and provide all necessary information. The Client shall immediately notify the Contractor in writing or by e-mail of any defects that have occurred. The Client shall bear any additional expenses incurred in the elimination of defects due to late notification.
5.4 The provisions of this clause shall apply mutatis mutandis to any deliveries of hardware or software products from the Contractor to the Client. The warranty period for such deliveries shall be 6 months from handover. § Section 924 ABGB (Austrian Civil Code) “Presumption of defectiveness” is excluded by mutual agreement. For any hardware or software products of third parties provided to the Client by the Contractor, the respective warranty conditions of the manufacturer of these products shall have priority over the provisions of this item. Until payment has been made in full, the contractor shall retain ownership of all hardware and software products supplied by him.
6.1 The Contractor shall only be liable to the Client for damage for which it is demonstrably responsible in the event of gross negligence. This shall also apply mutatis mutandis to damage attributable to third parties engaged by the contractor.
6.2 Liability for indirect damage – such as loss of profit, costs associated with a business interruption, loss of data or claims by third parties – is expressly excluded.
6.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the damaging party.
6.4 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client.
6.5 If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from item 6.2, but shall be limited for the recovery of data to a maximum of EUR 10 % of the order sum per case of damage, up to a maximum of EUR 15,000. Any further warranty claims and claims for damages of the Principal other than those specified in this contract – irrespective of the legal grounds – shall be excluded.
7.1 The remuneration and conditions to be paid by the Client shall result from the contract. The statutory value added tax shall be charged additionally.
7.2 Software and hardware components shall be invoiced after delivery. Services shall be invoiced monthly after their performance.
7.3 Payment terms are 14 days after invoicing, without discount.
7.4 All services are subject to travel costs, travel time for arrival and departure and expenses:
– Travel by car: official mileage allowance
– Train/plane/taxi/hired car/public transport: settlement according to voucher
– Hotel/expenses: Settlement according to voucher
– Travel time: 50% of the service rate
7.5 If, at the express request of the Client, work is carried out outside normal business hours, the following surcharges shall apply to the agreed hourly rate:
– 20:00 to 6:00: 50%
– Saturday: 50%
– Sunday: 100%
– public holiday: 100%
7.6 The Contractor shall be entitled at any time to make the performance of the service dependent on the provision of advance payments or the provision of other securities by the Client in an appropriate amount.
7.7 The OP shall only be permitted to offset a counterclaim that has been recognised by the CO or has become res judicata. The Principal shall not be entitled to a right of retention.
7.8 All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Principal. Should the Contractor be held liable for such charges, the Client shall indemnify and hold the Contractor harmless.
8. Force Majeure
8.1 Insofar as and as long as obligations cannot be fulfilled on time or properly as a result of force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of the power supply, failure of means of transport, failure of telecommunication networks or data lines, changes in the law affecting the services after conclusion of the contract or other non-availability of products, this shall not constitute a breach of contract.
9. Rights to use software products and documents
9.1 For third-party software products provided to the Principal by the Contractor, the respective licence provisions of the manufacturer of these software products shall take precedence over the provisions of this clause.
9.2 Unless otherwise agreed, no further rights to software products shall be transferred to the Principal. The Principal’s rights under §§ 40(d), 40(e) UrhG shall not be affected thereby.
9.3 All documents provided to the Client by the Contractor, in particular the documentation for software products, may neither be reproduced nor distributed in any way, whether for a fee or free of charge.
10. Data protection and confidentiality
10.1 When handling personal data, the Contractor and the Client shall observe the provisions of the Data Protection Act, the DSGVO and the Telecommunications Act and shall take the technical and organisational measures required for data protection in their own area of responsibility.
10.2 Each party to the contract assures the other party to treat all trade secrets brought to its attention by the other party in connection with this contract and its execution as such and not to make them available to third parties, unless they are generally known, or were already known to the Recipient beforehand without an obligation to maintain secrecy, or are communicated or provided to the Recipient by a third party without an obligation to maintain secrecy, or have demonstrably been independently developed by the Recipient, or are required to be disclosed on the basis of a legally binding official or judicial decision.
10.3 Subcontractors associated with the Contractor shall not be deemed third parties insofar as they are subject to a confidentiality obligation corresponding in content to this point.
11.1 The contracting parties shall name in the contract knowledgeable and competent employees who can make or arrange for the necessary decisions.
11.2 During the term of the contract and until the expiry of one year after the end of the contract, the Client shall not entice away employees employed by the Contractor to provide the services, either itself or via third parties. The Principal undertakes to pay the Contractor a contractual penalty in the amount of twelve times the gross monthly salary that the employee in question last received from the Contractor, but at least the collective agreement salary of an employee of companies in the field of services in automatic data processing and information technology at the experience level for special activities (ST2) for each case of infringement.
11.3 Amendments and supplements to the contract must be made in writing. This also applies to the waiver of this formal requirement.
11.4 Should one or more provisions of the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a mutatis mutandis valid provision which comes as close as possible to the economic purpose of the invalid or unenforceable clause.
11.5 Any disposal of the rights or obligations existing on the basis of the contract shall require the prior written consent of the respective 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 Principal’s consent.
11.6 Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall be governed exclusively by Austrian law, even if the order is executed abroad. For any disputes, the local jurisdiction of the court with subject-matter jurisdiction for the Contractor’s place of business shall be exclusively agreed.
Translated from the german original with DeepL.