General Terms and Conditions
1.1 The Contractor (CO) shall provide information technology services and the operation of hardware and software components for the Client (CL) in compliance with the separately agreed Service Level Agreements (SLAs).
1.2 These General Terms and Conditions (GTC) shall apply to all present and future services which the Contractor provides to the Client, even if no express reference is made to the GTC 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.
2 Scope of the Services
2.1 The exact scope of the Contractor’s services shall be determined by 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 the SLA. The Contractor shall ensure the provision and availability of the Services in accordance with the respective SLA.
2.2 The basis for the performance of the services shall be the information provided by the CL. If new requirements of the CL require a change in the services or the technology used, the Contractor shall submit a corresponding offer at the request of the CL.
2.3 The Contractor shall be entitled to change the equipment used to provide the Services at its own discretion if an impairment of the Services is not to be expected.
2.4 Services of the Contractor which are used by the Client beyond the agreed scope of services shall be remunerated by the Client according to actual personnel and material expenses at the rates applicable at the Contractor. This includes, in particular, services outside the Contractor’s normal business hours, the analysis and elimination of malfunctions and faults caused by improper handling or operation by the Client or other circumstances for which the Contractor is not responsible. Training services are also generally not included in the services. Training services shall be remunerated separately.
2.5 If the Contractor procures services from third parties at the Client’s request, these contracts shall be concluded exclusively between the Client and the third party under the respective terms and conditions of the third party. The Contractor shall only be responsible for the services it provides. 3.
3. the client’s obligation to cooperate and provide
3.1 The CL undertakes to support all measures required for the provision of the services by the CO. In addition, the Client undertakes to take all measures which are necessary for the fulfilment of the contract and which are not part of the Contractor’s scope of services. If the Client does not comply with his obligation to cooperate and provide, the Contractor shall be entitled to invoice the services provided by him up to that point and shall be paid by the Client within 14 days without deduction. Offsetting against these claims is inadmissible in any case. The Contractor shall not be obliged to still perform the outstanding services which would still have to be performed and which cannot be performed due to the Client’s lack of obligation to cooperate and provide.
3.2 The Principal shall be responsible for special safety precautions in his company. The Client is not entitled to issue instructions of any kind to the Contractor’s employees and shall direct all enquiries regarding the provision of services only to the contact person named by the Contractor.
3.3 The CL undertakes to provide all information, data and documents required by the CO for the performance of the order in the form requested by the CO at the agreed dates and at its own expense and further undertakes to inform the CO as far as possible of its concerns during problem analysis and support in troubleshooting, coordination of order processing and coordination of services. Changes in the work processes at the Client which may lead to changes in the services to be provided by the Contractor for the Client shall require prior coordination with the Contractor. This shall apply to all, but in particular with regard to their technical and economic effects.
3.4 Insofar as this is not expressly included in the Contractor’s scope of services, the Client shall provide for a grid connection at its own expense and risk.
3.5 The Principal shall be obliged to treat the passwords and log-ins required for the Contractor’s use of the Services as confidential.
3.6 The Client is obliged to keep the data and information provided to the Contractor with him so that they can be reconstructed at any time in the event of loss or damage. The Contractor therefore accepts no liability for the loss of data.
3.7 The Client 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 it have the access to the Client’s premises required for the performance of the services. The CL 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.
3.8 If the Client does not fulfil his obligations to cooperate on the agreed dates or to the intended extent, the services provided by the Contractor shall nevertheless be 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 compensate the Contractor separately for the additional work and / or costs incurred at the Contractor’s applicable rates.
3.9 The Client undertakes to treat himself and his employees as well as the third parties attributable to him, the equipment and technologies used by the Contractor as well as the assets provided to him with care; the Client shall be liable to the Contractor for any damage.
3.10 All contributions and benefits of the Principal shall be made free of charge. In the event that a special agreement should exist in this respect, the Principal shall be obliged to send the Contractor a corresponding letter of confirmation in which any changes to this agreement are confirmed in detail in writing. If the Client has demonstrably not sent such a letter to the Contractor, this shall be tantamount to a waiver of claims in this respect.
If, according to the agreements made between the contracting parties, employees of the CL are taken over by the CO, a separate written agreement shall be concluded.
5. changes to the scope of services
Changes to the scope of services shall be possible at any time by mutual agreement. In this case, the written form shall be expressly agreed. If no written agreement is reached, this shall mean that the party to the contract invoking the changes to the scope of performance waives its claims. A change request must not only be made in writing, but must also contain a precise description of the change, the reasons for the change, the effects on the schedule and the costs. Furthermore, it is agreed that a binding change in the scope of services shall only come into effect if it is legally signed by both contracting parties.
6. performance disruptions
6.1 The contractor undertakes to perform the services in accordance with the contract. If the Contractor does not provide the Services at the scheduled times or provides them only defectively, i.e. with significant deviations from the agreed quality standards, the Contractor shall be obliged to immediately start remedying the defect and to provide its Services properly and free of defects within a reasonable period of time by repeating the affected Services or by making necessary improvements.
6.2 If the defect is based on a provision or cooperation of the Client or a breach of the Client’s obligations pursuant to section 3.9, an obligation to remedy the defect free of charge shall be excluded. In such cases, the Contractor’s services shall be deemed to have been provided in accordance with the contract despite any restrictions. The Contractor shall remedy defects at the Client’s request.
6.3 The Principal shall support the Contractor in remedying the defect and provide all necessary information. The CL shall report defects to the CO in writing or by e-mail without delay. The CL shall bear any additional expenses incurred in troubleshooting as a result of late reporting.
6.4 The provisions of this point shall apply mutatis mutandis to all deliveries of hardware or software products from the Contractor to the Client. The warranty period for such deliveries shall be 6 months. The “presumption of defects” of § 924 ABGB is excluded by mutual agreement. For hardware or software products delivered by the Contractor to third parties, the respective warranty conditions of the manufacturer of these products shall apply in addition to the provisions of this point. The Contractor shall retain ownership of all hardware and software products delivered by him until payment has been made in full. 7.
7. contractual penalty
The Contractor shall be obliged to comply with the degrees of fulfilment or recovery times specified in the SLA according to priorities. If the contractor exceeds the deadlines specified in the SLA for the recovery, the contractor shall pay contractual penalties for each hour of the overrun until the actual recovery (fulfilment) in accordance with the SLA: The aforementioned contractual penalties are limited per year to 20% of the amount of the annual fee. The assertion of a further claim for damages, whether in the case of intent or gross negligence, is excluded. If the contractual penalty is exceeded, the contractor must be informed immediately in writing.
8.1 The contractor is liable for damages caused by gross negligence and intent. The contractor shall in no case be liable for slight negligence.
8.2 If data backup has been expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from clause 8.1, but shall be limited for the recovery of data up to the amount of the order value. Further warranty claims and claims for damages of the Principal – irrespective of the legal grounds – are excluded, unless liability is mandatory due to intent or gross negligence to be proven by the Principal.
9.1 The remuneration and conditions to be paid by the Principal are set out in the SLA. In addition, the statutory value added tax shall be invoiced.
9.2 Travel times of the Contractor’s employees shall be deemed working times. Travel times shall be remunerated at the agreed hourly rate. The aforementioned rates shall change in accordance with the price escalator clause in clause 9.5. In addition, travel costs and any accommodation costs shall be reimbursed by the Client according to actual expenditure.
9.3 The Contractor shall be entitled at any time to make the performance of services dependent on the provision of advance payments or the provision of other securities by the Client in an appropriate amount.
9.4 Unless otherwise agreed in the contract, one-off payments shall be invoiced after the services have been rendered and ongoing payments shall be invoiced annually in advance. Invoices issued by the Contractor, including value added tax, shall be payable without any deductions and free of charges no later than 14 days after receipt of the invoice. For partial invoices, the terms of payment specified for the entire order shall apply mutatis mutandis. Payment shall be deemed to have been made on the day on which the contractor can dispose of it. If the Client is in default with his payments, the Contractor shall be entitled to charge the statutory default interest and all costs necessary for collection. In the event of default by the Client, the Contractor shall be entitled to cease all services immediately. The Contractor is also entitled to pay the fee for all services already rendered immediately without regard to any payment deadlines.
9.5 The Client shall only be permitted to offset a counterclaim recognised by the Contractor or legally established. The Principal shall not be entitled to a right of retention.
9.6 All tax obligations arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Principal. If a claim is made against the Contractor for such levies, the Principal shall indemnify and hold the Contractor harmless.
10 Force majeure
Insofar and as long as obligations cannot be fulfilled in time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of energy 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.
11. Rights of use to software products and documents
11.1 Insofar as CU provides software products to CU or CU enables the use of software products within the scope of the services, CU shall be entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the duration of the contract, to use the software products in unmodified form.
11.2 When using software products in a network, a licence is required for each concurrent user. When using software products on “single PCs”, a licence is required for each PC.
11.3 For third-party software products provided by the customer, the respective licence conditions of the manufacturer of these software products shall apply in addition to the provisions of this point.
11.4 Unless a separate agreement is made, no further rights to software products shall be transferred to the Principal. The rights of the Principal pursuant to §§ 40 (d), 40 (e) UrhG shall remain unaffected.
11.5 All documents made available to the Principal by the Contractor, in particular the documentation on software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.
12 Term of the contract
12.1 The contract shall come into effect upon signature by both contracting parties. The term of the contract shall be 24 months and the contractual relationship shall be extended by a further 12 months in each case if it is not terminated by registered letter with a notice period of 3 months, at the earliest, however, at the end of the minimum term agreed in the SLA, at the end of each calendar year.
12.2 Each contracting party is entitled to terminate the contract prematurely and without notice for good cause by registered letter. Good cause shall be deemed to exist in particular if the other contracting party breaches material obligations under the contract despite written warning and threat of termination or if bankruptcy or other insolvency proceedings are filed against the assets of the other contracting party, opened or dismissed for lack of assets or if the services of the other contracting party are prevented or interrupted for more than six months due to force majeure.
12.3 The contractor is also entitled to terminate the contract prematurely for good cause if essential parameters of the service provision have changed and the contractor can no longer be expected to continue providing the service economically.
12.4 Upon termination of the contract, the Client shall immediately return to the Contractor all documents and records provided by the Contractor.
13 Data protection
13.1 When handling personal data, the Contractor shall observe the provisions of the Data Protection Act and the Telecommunications Act and shall take the technical and organisational measures required for data protection within the Contractor’s area of responsibility. The Contractor shall in particular oblige its employees to comply with the provisions of the Data Protection Act.
13.2 The Contractor shall not be obliged to check the permissibility of the data processing commissioned by the Client under data protection law. The Client shall satisfy itself of the permissibility of the transmission of personal data to the Contractor and the processing of such data by the Contractor.
13.3 The Contractor shall take all reasonable measures to protect the Contractor’s data and information 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 gaining unlawful access to the data and information.
13.4 By concluding the contract, the Principal agrees that the data from this business case may also be transferred to subcontractors involved in the processing of this order.
14.1 Each party to the contract assures the other that it will treat all business secrets of which it becomes aware in connection with this contract and its execution as such and will not make them available to third parties unless they are generally known or were previously known to the Recipient without an obligation to maintain confidentiality or were disclosed to the Recipient by a third party without an obligation to maintain confidentiality or were demonstrably developed independently by the Recipient or are to be disclosed on the basis of a legally binding official or court decision.
14.2 Subcontractors associated with the Contractor shall not be deemed to be third parties insofar as they are subject to a corresponding obligation of confidentiality.
15.1 The contracting parties shall be obliged to appoint knowledgeable and competent employees who make or can make the necessary decisions.
15.2 During the term of the contract and until the expiry of one year after the end of the contract, the Principal shall not entice away any employees employed by the Contractor to perform the services himself or through third parties. The Principal undertakes to pay the Contractor a contractual penalty for each case of infringement amounting to twelve times the gross monthly salary which the employee concerned received from the Contractor, but at least the collective contractual 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).
15.3 Amendments and supplements to the contract must be made in writing. This shall also apply to the waiver of this formal requirement.
15.4 Should one or more provisions of the contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. 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.
15.5 Any disposition of the rights and obligations under the contract shall require the prior written consent of the other contracting party.
15.6 The Contractor shall be entitled to use third parties to fulfil its obligations in whole or in part.
15.7 Unless otherwise agreed, the statutory provisions applicable between fully qualified merchants shall apply exclusively in accordance with Austrian law, even if the order is executed abroad. In the event of disputes, the local jurisdiction of the court responsible for the Contractor’s registered office shall apply.
16 Information on online dispute resolution
16.1 The EU Commission provides a platform for online dispute resolution on the Internet at the following link: http://ec.europa.eu/consumers/odr This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts involving a consumer. We are neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
Last updated: 14 April 2020