As of May 1st, 2019
1.1 The contractor provides services for the client in information technology.
1.2 These Terms of Service (ToS) apply to all current and future services that the contractor provides to the client, even if in individual cases no explicit reference is made to the ToS when the contract is concluded. Terms and conditions of the client only apply if they have been accepted by the contractor in writing.
2. Scope of services
2.1 The exact scope of the services of the contractor is specified in the respective offer or concept document with the client.
2.2 The basis of the facilities and technology used for the provision of services by contractor is the qualitative and quantitative performance requirements of the client, as determined on the basis of the information provided by the client. If new requirements of the client require a change in the services or the technology used, the contractor will submit a corresponding offer at the request of the client.
2.3 The Contractor is entitled to change the facilities used to provide the services at its own discretion if the services are not expected to be impaired.
2.4 Services by the contractor that are used by the client beyond the agreed scope of services will be remunerated by the client based on actual personnel and material expenses at the rates applicable at the contractor. This includes, in particular, services outside of the normal business hours at the contractor, the analysis and elimination of faults and errors that 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 is free to have services provided by third parties.
3. Client’s duty to cooperate and provide
3.1 The client undertakes to support all measures that are necessary for the provision of the services by the contractor. The client further undertakes to take all measures that are necessary to fulfill the contract and that are not included in the scope of services of the contractor.
3.2 If the services are provided on site at the client, the client provides the systems, network components, connections, supply current including peak voltage compensation, emergency power supplies, storage space for systems, workplaces and infrastructure required to provide the services by the contractor to the required extent and quality (e.g. Air conditioning) available free of charge. In any case, the client is responsible for complying with the requirements for the operation of the hardware required by the respective manufacturer. The client also has to ensure room and building security, including protection against water, fire and unauthorized access. The client is responsible for special security measures (e.g. security cells) on his premises. The client is not entitled to issue instructions of any kind to the employees of the contractor and will only submit all requests regarding the provision of services to the contact person named by the contractor.
3.3 The client provides all the 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 supports the contractor in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the work processes at the client, which can cause changes in the services to be provided by the contractor for the client, require prior consultation with the contractor with regard to their technical and commercial effects.
3.4 The client will also 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 client will perform all of its duties to cooperate in a timely manner so that the contractor is not hindered in the provision of the services. The client ensures that the contractor and / or the third parties commissioned by the contractor receive the necessary access to the premises at the client for the provision of the services. The client is responsible for ensuring that the employees of its affiliated companies involved in the fulfillment of the contract or third parties commissioned by it cooperate accordingly in the fulfillment of the contract.
3.6 If the client does not fulfill its duties to cooperate on the agreed dates or to the intended extent, the services provided by the Contractor are still performed in accordance with the contract despite possible restrictions. Timetables for the services to be provided by contractor are shifting to a reasonable extent. The client will compensate the additional expenses and / or costs incurred by the contractor separately at the rates applicable at the contractor.
3.7 The client ensures that its employees and the third parties attributable to it carefully treat the facilities and technologies used by contractor as well as the assets surrendered to it; the client is liable to the contractor for any damage.
3.8 Unless otherwise agreed, the customer provides and contributes free of charge.
4. Change requests
4.1 Both contractual partners can request changes to the scope of services at any time (“Change Request”). However, a desired change must provide a precise description of the change, the reasons for the change, the impact on time planning and the costs in order to give the addressee of the change request the possibility of an appropriate evaluation. A change request is only binding after the legally valid signature of both contractual partners.
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 insufficiently, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to start rectifying the defect immediately and to provide its services properly and without defects within a reasonable period of time, by repeating the services concerned or carrying out any necessary remedial work.
5.2 If the defect is due to the provision or cooperation of the client or a breach of the client’s obligations, any obligation to remedy the defect is excluded. In these cases, the services provided by the Contractor are still considered to be provided in accordance with the contract, despite possible restrictions. At the request of the client, the contractor will undertake a remedy of the defect for a fee.
5.3 The client will support the contractor in rectifying the defect and provide all the necessary information. The client must immediately report any defects to the Contractor in writing or by e-mail. The client bears the additional work involved in troubleshooting due to a late notification.
5.4 The provisions of this point apply mutatis mutandis to any deliveries of hardware or software products from the contractor to the client. The warranty period for such deliveries is 6 months from delivery. § 924 ABGB “presumption of deficiency” is mutually excluded. For any hardware or software products provided by the contractor to third parties, the respective warranty conditions of the manufacturer of these products apply above the provisions of this point. Until full payment is made, contractor reserves ownership of all hardware and software products it supplies.
6.1 The contractor is only liable to the customer for demonstrably caused damage in the event of gross negligence. This also applies mutatis mutandis to damage caused by third parties brought in by the contractor.
6.2 Liability for indirect damage – such as loss of profit, costs associated with business interruption, data loss or claims by third parties – is expressly excluded.
6.3 Claims for damages become statute-barred in accordance with the statutory provisions, but at the latest one year after knowledge of the damage and the party causing the damage.
6.4 If the contractor provides the work with the help of third parties and warranty and / or liability claims arise against these third parties in this context, the contractor assigns these claims to the client.
6.5 If the data backup is expressly agreed as a service, liability for the loss of data deviating from point 6.2 is not excluded, but limited for the restoration of the data up to a maximum of EUR 10% of the order amount per damage event, however a maximum of EUR 15,000. Further warranty claims and claims for damages by the client – regardless of the legal reason – are excluded.
7.1 The remuneration and conditions to be paid by the client result from the contract. The statutory sales tax will also be charged.
7.2 The software and hardware components are billed after delivery. Services are billed monthly after they are provided.
7.3 Payment terms are 14 days after invoicing, without discount.
7.4 All services apply plus travel costs, travel time for arrival and departure and expenses:
– Travel by car: official mileage allowance
– Train / plane / taxi / rental car / public transport: accounting according to receipt
– Hotel / expenses: accounting according to receipt
– Travel times: 50% of the service rate
7.5 If, at the express request of the client, activities take place outside normal business hours, the following surcharges apply to the agreed hourly rate:
– 20:00 to 6:00: 50%
– Saturday: 50%
– Sunday: 100%
– public holiday: 100%
7.6 The Contractor is entitled at any time to make the provision of services dependent on the payment of down payments or the provision of other collateral by the Client to an appropriate amount.
7.7 The client is only allowed to offset against a counterclaim recognized or legally established by the Contractor. The client has no right of retention.
7.8 All tax obligations resulting from the contractual relationship, e.g. Legal transaction fees or withholding taxes are borne by the client. If the contractor is used for such charges, the client will indemnify and hold the contractor harmless.
8. Force Majeure
8.1 To the extent and as long as obligations due to force majeure, such as War, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, power supply failure, transport failure, telecommunication network or data line failure, changes in the law affecting the services after the conclusion of the contract or other unavailability of products, not on time or incorrectly can be fulfilled, this does not constitute a breach of contract.
9. Rights to use software products and documents
9.1 For third-party software products provided by the client, the respective license terms of the manufacturer of these software products apply primarily to the provisions of this point.
9.2 Unless a separate agreement is made, no further rights to software products are transferred to the client. The rights of the client according to §§ 40 (d), 40 (e) UrhG are not affected by this.
9.3 All documents provided by the Contractor to the Client, especially the documentation on software products, may not be reproduced or distributed in any way against payment or free of charge.
10. Data protection and confidentiality
10.1 Contractor and client will observe the provisions of the Data Protection Act, the GDPR and the Telecommunications Act when handling personal data and take the technical and organizational measures necessary for data protection in their own area of responsibility.
10.2 Each contractual partner assures the other that it will treat all trade secrets brought to its attention by the other in connection with this contract and its implementation as such and not make them accessible to third parties insofar as these are not generally known, or to the recipient beforehand without any obligation to Confidentiality was known, or communicated to the recipient by a third party without any obligation to maintain secrecy, or demonstrably developed independently by the recipient, or must be disclosed on the basis of a legally binding official or judicial decision.
10.3 The subcontractors associated with the Contractor are not considered to be third parties insofar as they are subject to a confidentiality obligation corresponding to this point.
11.1 The contracting parties name competent and competent employees in the contract who can make or make the necessary decisions.
11.2 During the term of the contract and until the end of one year after the end of the contract, the client will not entice employees employed by the contractor to provide the services itself or through third parties. The client undertakes to pay a contractual penalty in the amount of twelve times the gross monthly salary for each violation of the contractor that the employee concerned last received from the contractor, but at least the 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).
11.3 Changes and additions to the contract must be made in writing. This also applies to the abolition of this formal requirement.
11.4 Should one or more provisions of the contract be or become wholly or partially ineffective or not feasible, the validity of the remaining provisions will not be affected. The ineffective or unenforceable provision is to be replaced by an analogous valid regulation that comes as close as possible to the economic purpose of the ineffective or unenforceable clause.
11.5 Any disposal of the rights or obligations based on the contract requires the prior written consent of the other contractual partner. However, the contractor is entitled to transfer the contract to a company affiliated with the contractor without the AG’s consent.
11.6 Unless otherwise agreed, the legal provisions applicable between entrepreneurs 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 apply.
Translated from the german original with Google Translate.