General Terms and Conditions of D3eif GmbH
1. scope of contract and validity
All orders and agreements shall only be legally binding if they are signed by the contractor ("D3EIF GmbH") in writing and in accordance with the company's specifications and shall only be binding to the extent stated in the order confirmation. Terms and conditions of purchase and general terms and conditions of the principal ("Customer") are hereby excluded for the present legal transaction and the entire business relationship. Offers are always subject to change without notice.
2. performance and testing
2.1 The subject of an order may be:
- Development of organisational concepts
- Global and detailed analyses
- Creation of individual programmes
- Delivery of library (standard) programmes
- Acquisition of usage rights for software products
- Acquisition of licences for the use of works
- Participation in commissioning (changeover support)
- Telephone consultation
- programme maintenance
- Creation of programme carriers
-Accessibility and provision of online platforms (online service) e.g. "Drip".
- Other services
2.2 The development 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 facilities to a sufficient extent, which the client shall provide in a timely manner, in normal working hours and at its own expense. If the client is already working in live operation on the system provided for testing, the responsibility for securing the live data lies with the client.
2.3 The basis for the creation of individual programmes is the written performance specification which the contractor prepares against cost calculation on the basis of the documents and information made available to him or which the client makes available. This performance specification is to be checked by the client for correctness and completeness and to be marked with his approval. Requests for changes occurring at a later date may lead to separate agreements on dates and prices.
2.4 Individually created software or programme adaptations require a programme acceptance by the client for the respective programme package at the latest four weeks after delivery. This shall be confirmed in a protocol by the Client. (Check for correctness and completeness on the basis of the service description accepted by the contractor by means of the test data provided under point 2.2). If the client allows the period of four weeks to elapse without accepting the programme, the software supplied shall be deemed to have been accepted on the end date of the said period. If the client uses the software in live operation, the software shall be deemed to have been accepted in any case.
Any defects that occur, i.e. deviations from the service description agreed in writing, shall be reported by the Client to the Contractor with sufficient documentation, who shall endeavour to remedy the defects as quickly as possible. If there are significant defects reported in writing, i.e. real operation cannot be started or continued, a new acceptance is required after the defects have been rectified.
The Client is not entitled to refuse acceptance of software due to immaterial defects.
2.5 When ordering library (standard) programmes and online services, the client confirms with the order that he is aware of the scope of services of the ordered programmes or online platforms.
2.6 Should it become apparent in the course of the work that the execution of the order in accordance with the performance specification is actually or legally impossible, the contractor is obliged to notify the client of this immediately. If the Client does not amend the service description or create the preconditions for execution to become possible, the Contractor may refuse execution. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change to the service description by the client, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the contractor's activities up to that point as well as any dismantling costs shall be reimbursed by the client.
2.7 Any dispatch of programme carriers, documentation and service descriptions shall be at the expense and risk of the Client. Any additional training and explanations requested by the client shall be invoiced separately. Insurance shall only be provided at the request of the client.
2.8 We expressly point out that a "barrier-free design (of websites) within the meaning of the Federal Act on the Equalisation of Persons with Disabilities (Federal Act on the Equalisation of Persons with Disabilities - BGStG)" is not included in the offer, unless this was requested separately/individually by the client. If the barrier-free design has not been agreed, it shall be incumbent on the Client to review the service for its permissibility with regard to the Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz - BGStG). Likewise, the Client shall review the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The contractor shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the client if the content was provided by the client.
2.9 The websites, the content presented and the facilities of the online service are subject to change. The contractor reserves the right to update and change the web pages, the content presented and the facilities of the online service as often as necessary. Temporary, technically-related failures of the online service or delays in establishing connections cannot be completely ruled out. The Contractor shall remedy any interruption or other technical malfunction of which it becomes aware without culpable delay.
Technical maintenance work may lead to interruptions in the usability of the online service. Maintenance work will be announced (if possible) and kept as short as possible.
3. requirements for the use of online services
3.1 The Client undertakes to follow the Contractor's instructions regarding the use of the Websites and/or the Online Service.
3.2 The Client is responsible for maintaining the confidentiality of the Client's registered user names and passwords. The Client is responsible for the accuracy of the Client's registration data and the registration data of the Client's users (hereinafter referred to as "Client's registration data"). In the event of a breach of confidentiality of a user name, the assigned password or security in general for which the Client is responsible, the Client must notify the Contractor immediately.
3.3 The Client agrees not to use the Websites or the Online Service to:
- Upload, post or otherwise transmit any data or content that is unlawful, harmful, threatening, abusive, harassing, torturous, abusive, vulgar, obscene, defamatory, hateful, invasive of another's privacy, racially or ethnically discriminatory or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity (including, without limitation, any employee of the Contractor) or falsely state or otherwise misrepresent its affiliation with any person or entity;
- upload, post or otherwise transmit any content that it is not authorised to transmit under any law or contractual or fiduciary relationship (such as inside information or proprietary and confidential information where third parties have the rights to do so);
- upload, post or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party;
- upload, post or otherwise transmit any unsolicited or unauthorised advertising, promotional material, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
- Material that contains software viruses or other computer code, archives or programs designed to interrupt, destroy or limit the functionality of, upload, post or otherwise transmit any computer software or hardware or telecommunications equipment;
- Interfere with or disrupt any websites, servers or networks connected to the Websites or disobey any requirements, procedures, policies or regulations of networks connected to the Websites; Harass others in any way; Collect or store personal data of other users;
- Promote or disseminate instructions and information about illegal activities, promote physical harm or injury to a group or individual, or promote an act of violence against animals. This may include, but is not limited to, distributing instructions on how to build explosive devices, grenades and other weapons, and creating "crush" websites; and using the hosting site (or directory) as a store for remote loading or as a portal page or reference to another website (other than for one's own website), whether inside or outside the websites.
4. prices, taxes and fees
4.1 All prices are quoted in euros without value added tax. They shall only apply to the present order. The prices quoted are ex Contractor's place of business or office. The costs of programme carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees shall be invoiced separately.
4.2 In the event of increases in wage and material costs or other costs and charges occurring after conclusion of the contract, the contractor shall be entitled to increase the flat-rate amounts stated overleaf or the monthly costs of the online service accordingly and to charge them to the client from the beginning of the month following the increase. The increases shall be deemed accepted by the Client from the outset if they do not exceed 10% per annum. The monthly flat rate shall be value-assured according to the CPI 2015, initial index (month of conclusion of contract) and adjusted annually.
4.3 For library (standard) programmes, the list prices valid on the day of delivery shall apply. For all other services (organisational consulting, programming, training, conversion support, telephone consulting, etc.), the workload 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, for which the contractor is not responsible, shall be charged according to actual occurrence.
4.4 The costs for travel, daily and overnight allowances shall be invoiced separately to the Client according to the rates applicable at the time. Travel times shall be deemed to be working time.
4.5 If a free month has been agreed separately for an online service, the free month can - in the absence of an agreement to the contrary - only be claimed once and exclusively from the first use, irrespective of the number of assets (= billing unit) and subsequent additional bookings of further assets.
5. delivery date
5.1 The contractor shall endeavour to meet the agreed deadlines for performance (completion or provision of the online service) as closely as possible.
5.2 The targeted performance dates can only be met if the Client provides all the necessary work and documents in full, in particular the performance specification accepted by him in accordance with point 2.3, by the dates specified by the Contractor and fulfils his obligation to cooperate to the required extent.
The Contractor shall not be responsible for delays in delivery and increases in costs resulting from incorrect, incomplete or subsequently changed details and information or documents provided and such delays cannot lead to the Contractor being in default. Any additional costs resulting therefrom shall be borne by the Client.
5.3 In the case of orders comprising several units or programmes, the Contractor shall be entitled to make partial deliveries or to issue partial invoices.
5.4 The Contractor shall not be liable for any failure to perform its obligations under these Conditions of Use if such failure is due to circumstances beyond its reasonable control, including any lockout, strike, spontaneous stoppage of work, inability to obtain supplies, accident, war, riot, civil commotion, fire, explosion, earthquake, epidemic, act of God or any other cause or event.
6. payment online services
6.1. The agreed flat-rate cost amounts for ongoing online services are to be paid by the Client for the month in advance. In the absence of any agreement to the contrary, a monthly invoice shall be issued for the scope of the booked assets.
If additional assets are booked during a monthly settlement interval, the additional assets are settled aliquot in the following month and a further settlement is made on the basis of the highest number of assets in the previous month.
If invoicing is agreed on the basis of consignments, invoicing shall always take place in the following month according to the actual number of tracked consignments.
6.2 The invoices issued by the contractor are due 14 days after the invoice date without deduction and free of charges.
6.3 Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfilment of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the ongoing work and to withdraw from the contract. All associated costs and loss of profit shall be borne by the client.
6.4 The client is not entitled to withhold payments due to incomplete total delivery or accessibility, guarantee or warranty claims or complaints.
7. payment Software products and other services
7.1 The invoices issued by the contractor, including value added tax, are 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 analogously.
7.2 In the case of orders comprising several units (e.g. programmes and/or training, realisations in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or service.
7.3 Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfilment of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the ongoing work and to withdraw from the contract. All associated costs and loss of profit shall be borne by the client.
7.4 The client is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
8 Copyright and use
8.1 After payment of the agreed remuneration, the Contractor shall grant the Client a non-exclusive, non-transferable, non-sublicensable right for an unlimited period of time to use the software for the hardware specified in the contract and, to the extent of the number of licences acquired, for simultaneous use on several workstations, to use all work results created on the basis of the Contractor's contract for its own internal use. All other rights shall remain with the contractor. The same shall apply to the use of the online service.
The Client's cooperation 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.
8.2 The client is 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 to these copies.
8.3 Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this shall be ordered by the Client from the Contractor against reimbursement of costs. If the contractor does not comply with this requirement and decompilation takes place in accordance with the Copyright Act, the results are to be used exclusively to establish interoperability. Misuse shall result in compensation for damages.
8.4 If software is made available to the client whose licence holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the licence provisions of the licence holder (manufacturer).
9. contract duration for online services
The contractual relationship, which presupposes a professional installation of the duly acquired software programme that is the subject matter of the contract or access to online services, begins with the signing of the contract and is concluded for an indefinite period.
This contract may be terminated in writing at any time by one of the contracting parties subject to a notice period of 3 months to the end of each calendar month.
If a free trial month is used and the online service is not subsequently used for a fee, access to the online service will be blocked after 30 days calculated from the conclusion of the contract.
10. right of withdrawal for software products
10.1 In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Client shall be entitled to withdraw from the relevant order by registered letter if the agreed performance is not provided in essential parts even within the reasonable grace period and the Client is not at fault for this.
10.2 Force majeure, labour disputes, natural disasters and transport blockades as well as other circumstances beyond the contractor's control shall release the contractor from the delivery obligation or allow him to re-determine the agreed delivery time.
10.3 Cancellations by the Client are only possible with the written consent of the Contractor. If the Contractor agrees to a cancellation, it shall be entitled to charge a cancellation fee in the amount of 30% of the order value of the overall project not yet invoiced, in addition to the services rendered and costs incurred.
11 Warranty, maintenance, modifications
11.1 The Contractor warrants that the Online Service or the software fulfils the functions described in the associated documentation, provided that the software or Online Services is used on the compatible operating systems and browsers and technical end devices.
11.2 A prerequisite for the elimination of errors is that
- the Client sufficiently describes the error in an error message and this can be determined for the Contractor;
- the Client provides the Contractor with all documents required for the rectification of the defect;
- the Client or a third party attributable to it has not interfered with the software;
- the software is operated under the intended operating conditions according to the documentation.
11.3 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 defect, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to examine and remedy the defects.
The presumption of defectiveness pursuant to § 924 ABGB shall be deemed excluded.
11.4 Corrections and additions that prove necessary up to the handover of the agreed service due to organisational and programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.
11.5 Costs for assistance, misdiagnosis as well as error and fault rectification for which the Client is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This shall also apply to the rectification of defects if programme changes, additions or other interventions have been made by the Client itself or by third parties.
11.6 Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage attributable to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
11.7 Any warranty by the Contractor shall lapse for programmes that are subsequently modified by the Client's own programmers or third parties.
11.8 Insofar as the object of the order is the modification or supplementation of already existing programmes, the warranty refers to the modification or supplementation. The warranty for the original programme shall not be revived thereby.
11.9 Warranty claims shall become statute-barred six (6) months after handover.
11.10. A temporary interruption of the usability of an online service due to technical failures or maintenance work shall not constitute a defect in the service.
11.11. The Contractor accepts no responsibility for the accuracy of data material obtained and provided by third parties (e.g. map material, traffic data, position data from telematics providers, etc.): Map material, traffic data, position data from telematics providers, etc.).
12.1 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. In the event of personal injury for which the Contractor is responsible, the Contractor shall be liable without limitation. Any liability of the contractor is furthermore limited to the amount of the insurance sum specifically paid by the contractor's liability insurance (the maximum liability sum is currently EUR 1,000,000.00). If there is no insurance cover, liability shall be limited to 3 times the fee paid in the matter. Upon request and at the expense of the client, an increase of the maximum liability sum can be effected by separate written agreement.
12.2 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.
12.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but at the latest upon expiry of one year from knowledge of the damage and the damaging party.
12.4 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. In this case, the Client shall give priority to these third parties.
12.5 The contractor assumes no liability whatsoever for the accuracy of data material obtained and made available by third-party providers (e.g. map material, traffic data, position data from telematics providers, etc.): Map material, traffic data, position data from telematics providers, etc.).
12.6 The Contractor shall operate its online services carefully and reliably. Nevertheless, unavoidable interruptions may occur in the provision of services as a result of unavoidable events for which the Contractor is not responsible and as a result of operationally necessary maintenance work. However, the Contractor shall endeavour to remedy faults or interruptions as quickly as possible.
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 realisation of the orders, of the other contractual partner for the duration of the contract and 12 months after termination of the contract. The contracting partner violating this shall be obliged to pay liquidated damages in the amount of one year's salary of the employee.
The Contractor shall oblige its employees to comply with the provisions pursuant to Section 6 of the Data Protection Act.
Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall cooperate in partnership to find a provision that comes as close as possible to the invalid provisions.
16. final provisions
Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall be governed exclusively by Austrian law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods, even if the order is executed abroad. Any disputes shall be subject to exclusively the local jurisdiction of the court having subject-matter jurisdiction for the Contractor's place of business (Linz) shall be deemed agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply insofar as the Consumer Protection Act does not mandatorily provide for other provisions.
Only the German version is valid.