4600 Thalheim bei Wels
Tel: ++43 (0) 72 42 / 25 20 50-24
Fax: ++43 (0) 72 42 / 25 20 50-94
Company registration number: FN 310231y
Regional Court Wels
UID-Nr: ATU 64168037
Shareholders: Ebner Media & Management GmbH (100%)
Managing Director: Dipl.-Ing. Mag. Roman Berngruber
1. Contract scope and validity
All orders and agreements are only legally binding if they are subscribed by the contractor in writing and according to the company and only oblige to the extent specified in the order confirmation. Purchasing conditions of the client are hereby excluded for the legal transaction in question and the entire business relationship. Offers are generally subject to change. Amendments and additions must be made in writing; oral commitments or Agreements are void unless they are confirmed in writing. All obligations of the contractor are suspended if and as long as the client is in default with services (in particular payments).
2. Performance and testing
2.1. The subject of an order may be:
– Elaboration of organizational concepts
– global and detailed analyses
– Creation of individual programs
– Delivery of library (standard) programs
– Acquisition of usage permits for software products
– Acquisition of work usage permits
– Participation in commissioning (conversion support)
– telephone consultation
– program maintenance
– creation of programme carriers
– Other services
2.2. The development of individual organisational concepts and programmes is carried out according to the type and scope of the binding information, documents and aids provided by the client in full. This also includes practical test data as well as test possibilities to a sufficient extent, which the client makes available on time, in the normal working time and at his expense. If the client is already working in real operation on the system provided for the test, the responsibility for securing the real data lies with the client.
2.3. The basis for the preparation of individual programs is the written service description, which the contractor prepares against cost calculation on the basis of the documents and information provided to him or provided by the client. This service description must be checked by the client for correctness and completeness and provided with his approval certificate. Subsequent requests for changes may lead to separate appointments and price agreements.
2.4. Individually created software or Program adaptations require a program acceptance no later than four weeks from delivery by the client for the respective program package concerned. This is 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 provision in point 2.2. the listed test data). If the client allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted with the end date of the said period. If the software is used in real operation by the client, the software shall in any case be deemed to have been accepted. Any
defects, i.e. deviations from the written service description, must be adequately documented by the customer to the contractor, who endeavours to remedy the defect as soon as possible. If there are material defects reported in writing, i.e. that the real operation cannot be started or continued, a new acceptance is required after the defect has been rectified. The client is not entitled to refuse the acceptance of software due to insignificant defects.
2.5. When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
2.6. Should it become apparent in the course of the work that the execution of the order is actually or legally impossible in accordance with the specifications of the service, the contractor is obliged to notify the client immediately. If the client does not change the service description accordingly or if the condition is made possible for execution, the contractor may refuse the execution. If the impossibility of execution is the result of a failure of the client or a subsequent change of the service description by the client, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the activities of the contractor up to that point, as well as any mining costs, shall be reimbursed by the client.
2.7. The sending of program carriers, documentation and service descriptions is at the expense and risk of the client. In addition, training and explanations requested by the client will be invoiced separately. Insurance is only provided at the request of the client.
3. Prices, taxes and fees
3.1. All prices are in euros without VAT. They apply only to this order. The prices quoted are understood from the place of business or – the post of contractor. The costs of programme providers (e.g. CD’s, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees will be charged separately.
3.2. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organisational advice, programming, enrolment, conversion support, telephone consultation, etc.), the workload is charged at the rates applicable on the day of service provision. Deviations from a time expenditure underlying the contract price, which is not the party for which the contractor is responsible, will be calculated on the basis of actual seizure.
3.3. The costs of travel, day and overnight stays will be invoiced to the client separately according to the applicable rates. Journey times are considered to be working time.
4. Delivery date
4.1. The contractor strives to meet the agreed deadlines of completion as precisely as possible.
4.2. The desired performance dates can only be met if the client completes all necessary work and documents on the dates specified by the contractor, in particular the service description accepted by him. point 2.3. and fulfils its obligation to cooperate to the extent necessary. Delays in delivery and cost increases caused by incorrect, incomplete or sub
sequently modified information and information or documents provided are not the property of the Contractor and cannot lead to the Contractor’s delay. The client shall bear the resulting additional costs.
4.3. For orders that have multiple units or programmes, the Contractor is entitled to carry out partial deliveries or to partial invoices.
5.1. The invoices, including VAT, which are provided by the contractor, are payable no later than 14 days from receipt of the invoice without any deduction and free of charge. For partial invoices, the payment terms set for the overall order apply in the same way.
5.2. For orders that have multiple units (e.g. programs and/or training courses, realizations in partial steps), the contractor is entitled to invoice after delivery of each individual unit or service.
5.3. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or performance of the contract by the contractor. Failure to comply with the agreed payments entitle the contractor to stop the ongoing work and to withdraw from the contract. All associated costs as well as the profit process are to be borne by the client. In the event of late payment, interest on arrears shall be charged to the usual extent of the bank. In the event of non-compliance with two instalments for partial payments, the contractor is entitled to allow the loss of time into force and to make accepted acceptances due.
5.4. The client is not entitled to withhold payments due to incomplete total delivery, warranty or warranty claims or complaints.
6. Copyright and Use
6.1. All copyrights in the agreed services (programs, documentation, etc.) are the property of the contractor or its licensors. The client shall only have the right to use the software for simultaneous use on several workstations for its own purposes, only for the hardware specified in the contract and to the extent of the number of licenses purchased for simultaneous use on several workstations after payment of the agreed fee. The contract in the present only acquires a work permit. Distribution by the client is excluded in accordance with the Copyright Act. Due to the cooperation of the client in the production of the software, no rights are acquired beyond the use specified in the present contract. Any infringement of the Copyrights of the Contractor shall result in claims for damages, whereby in such a case full satisfaction must be paid and a right of moderation is excluded.
6.2. The client is permitted to make copies for archival and data backup purposes on condition that the software does not contain an express prohibition of the licensor or third parties, and that all copyright and proprietary notices are transferred to these copies unchanged.
6.3. If the disclosure of the interfaces is necessary for the establishment of interoperability of the present software, this shall be commissioned by the client against reimbursement of costs from the contractor. If the Contractor fails to comply with this requirement and decompiles in accordance with copyright law, the results shall be used exclusively for the production of interoperability. Abuse results in damages.
6.4. In the event of the acquisition of the rights of use of a software product, the Contractor grants the User the non-exclusive, time-limited and computer-related right to use this Software. The use of software for the client is only possible from the computer on which the first login to the server takes place. The use of the software requires a connection to the servers of the contractors. The software automatically logs operations on the servers. The use of the software product requires an Internet connection.
7. Right of withdrawal
7.1. In the event of an agreed delivery time being exceeded due to the sole fault or unlawful action of the contractor, the customer is entitled to withdraw from the relevant order by means of a registered letter, if the agreed service is not performed in substantial parts within the reasonable grace period and the customer is not at fault for it.
7.2. Force majeure, industrial conflicts, natural disasters and transport barriers as well as other circumstances beyond the control of the contractor release the contractor from the delivery obligation or allow him to redefine the agreed delivery time.
7.3. Cancellations by the client are only possible with the written consent of the contractor. If the Contractor agrees to a cancellation, he has the right to charge a cancellation fee equal to 30% of the unaccounted order value of the entire project in addition to the services provided and accrued costs.
8. Warranty, maintenance, changes
8.1. Complaints of defects are only valid if they concern reproducible defects and if they are made within 4 weeks of delivery of the agreed service or in the case of individual software after program acceptance in accordance with Pkt. 2.4. documented in writing. In the case of warranty, improvement takes precedence over price reduction or conversion. In the event of justified notification of defects, the defects shall be remedied within a reasonable period of time, with the contracting authority allowing the contractor to take all necessary measures to investigate and rectify the defect. The presumption of inadequacy according to the Section 924 OF the ABGB is deemed to be excluded.
8.2. Corrections and additions which prove necessary until the delivery of the agreed service due to organisational and program-technical defects for which the contractor is responsible shall be carried out free of charge by the contractor.
8.3. Costs for assistance, misdiagnosis as well as fault and fault removal, which are responsible for the client as well as other corrections, changes and additions are carried out by the contractor against calculation. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client himself or by third parties.
8.4. Furthermore, the Contractor assumes no liability for errors, faults or damages due to improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage.
8.5. For programs that are designed by the client’s own programmers or third parties are subsequently changed, any warranty by the contractor shall be waived.
8.6. Insofar as the subject of the order is the modification or addition of existing programs, the warranty refers to the modification or addition. The warranty for the original program does not come back to life as a result.
The Contractor shall be liable for damages, if proven to be intent or gross negligence, within the scope of the statutory provisions. Liability for slight negligence is excluded. Compensation for consequential and financial losses, unearned savings, loss of interest and damages arising from claims of third parties against the contractor are excluded in any case, to the extent permitted by law. The maximum amount of liability for all claims arising from the business relationship between the client and the contractor is limited in amount to the amount agreed between the client and the contractor. Insofar as claims against the contractor exist, they shall become time-barred within 6 months of the provision of the present service if they are not asserted in court.
The contractors commit themselves to mutual loyalty. You will refrain from any recruitment and employment, including through third parties, of employees who have worked on the realization of the orders, of the other contracting party during the duration of the contract and 12 months after the termination of the contract. The contracting party infringed is obliged to pay lump sum damages in the amount of an annual salary of the employee.
11. Data protection, Secrecy
The contractor obliges its employees to comply with the provisions of Section 15 of the Data Protection Act.
Other provisions of this contract are ineffective or become ineffective, the remaining content of this contract shall not be affected. The contracting parties will work together in partnership in order to find a regulation that comes as close as possible to the ineffective provisions.
13. Final Clauses
Unless otherwise agreed, the statutory provisions applicable between full-time merchants shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. In the event of any disputes, the local and factual competent court at the registered office shall be agreed upon. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions apply only to the extent that the Consumer Protection Act does not necessarily provide for other provisions.