General Terms and Conditions


General Terms and Conditions for the Sale and Delivery of Organizational and Programming Services and Licenses for the Use of Software Products


2009 ByteSource Technology Consulting GmbH


1. Scope of Contract and Validity


All orders and agreements are only legally binding if they are confirmed in writing and duly signed by the Contractor and shall bind the Contractor only to the extent specified in the order confirmation. The Client’s purchasing terms and conditions are hereby excluded from applying to this transaction and the entire business relationship. Offers are in principle non-binding.

 

2. Services and Inspection


2.1. The subject of an order may include:

  • Development of organizational concepts
  • Global and detailed analyses
  • Creation of customized software programs
  • Delivery of library (standard) programs
  • Acquisition of rights of use for software products
  • Acquisition of licenses for the use of works
  • Support during commissioning (migration support)
  • Telephone consulting
  • Program maintenance
  • Creation of data carriers
  • Other services
     

2.2. The development of customized organizational concepts and programs shall be based on the type and scope of the binding information, documents, and resources fully provided by the Client. This includes providing practical test data and sufficient testing opportunities in a timely manner, during normal working hours, and at the Client’s expense. If the Client begins productive operations 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 customized programs is a written specification prepared by the Contractor (for a fee) based on the documents and information provided, or supplied directly by the Client. This specification must be reviewed by the Client for accuracy and completeness and confirmed with their approval. Later change requests may result in separate agreements regarding deadlines and pricing.


2.4. Customized software or program adaptations require acceptance testing for each affected software package by the Client within four weeks of delivery. Acceptance is confirmed in writing by the Client in a protocol (checking accuracy and completeness against the specification using the test data provided under Section 2.2). If the Client allows the four-week period to expire without acceptance, the delivered software shall be deemed accepted as of the end of this period. If the software is used in productive operations by the Client, it shall in any case be considered accepted.
Defects (defined as deviations from the written specification) must be sufficiently documented and reported by the Client to the Contractor, who will endeavor to remedy them as quickly as possible. If significant defects are reported in writing (i.e., productive operation cannot be started or continued), renewed acceptance testing shall be required after correction. The Client is not entitled to refuse acceptance due to minor defects.


2.5. When ordering library (standard) programs, the Client acknowledges with the order that they are familiar with the scope of services of the ordered programs. Where ByteSource, at the request of the Client, brokers services/deliveries/licenses of third parties, such contracts are concluded exclusively between the Client and the third party under the respective third-party terms and conditions.


2.6. If, during execution, it becomes apparent that the order cannot be carried out as described in the specification (either factually or legally), the Contractor is obliged to inform the Client immediately. If the Client does not amend the specification or create the necessary conditions to make execution possible, the Contractor may refuse performance. If impossibility arises due to the Client’s fault or subsequent changes to the specification, the Contractor is entitled to withdraw from the order. Costs and expenses incurred up to that point, as well as any dismantling costs, must be reimbursed by the Client.


2.7. Shipment of data carriers, documentation, and specifications shall be at the Client’s expense and risk. Any training or explanations requested by the Client shall be invoiced separately. Insurance is arranged only at the Client’s request.


3. Prices, Taxes, and Fees


3.1. All prices are quoted in euros, excluding VAT. They apply only to the present order. The stated prices are ex works (ex Contractor’s registered office). The costs of data carriers (e.g., CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, cassettes, etc.) as well as any contract fees shall be invoiced separately.


3.2. For library (standard) programs, the list prices valid on the date of delivery shall apply. For all other services (organizational consulting, programming, training, migration support, telephone consulting, etc.), the work performed shall be charged at the rates valid on the date of service provision. Deviations from the time estimate underlying the contract price, if not attributable to the Contractor, shall be charged according to the actual expenditure.


3.3. Travel costs, daily allowances, and overnight expenses shall be invoiced separately to the Client in accordance with the rates applicable at the time. Travel time shall be considered working time.


4. Delivery Date 

 

4.1. The Contractor shall make every effort to meet the agreed delivery or completion dates as precisely as possible.


4.2. Compliance with the targeted delivery dates is contingent upon the Client providing all necessary work and documents in full by the deadlines specified by the Contractor, in particular the specification accepted by the Client pursuant to Section 2.3, and fulfilling their obligations to cooperate to the required extent. Delays in delivery and increases in costs resulting from incorrect, incomplete, or subsequently amended information and documents provided by the Client shall not be attributable to the Contractor and cannot constitute default on the part of the Contractor. Any additional costs resulting therefrom shall be borne by the Client.
 

4.3. For orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries and to issue partial invoices.


5. Payment

 

5.1. The invoices issued by the Contractor, including VAT, are payable in full without any deductions and free of charges within 14 days of receipt of the invoice. For partial invoices, the payment terms agreed for the total order shall apply analogously.

 

5.2. For orders comprising several units (e.g., programs and/or training sessions, implementations in partial stages), the Contractor is entitled to issue an invoice after delivery of each individual unit or service.

 

5.3. Compliance with the agreed payment dates constitutes an essential condition for the execution of the delivery and/or performance of the contract by the Contractor. Failure to comply with the agreed payments entitles the Contractor to suspend ongoing work and withdraw from the contract. All related costs as well as loss of profit shall be borne by the Client. In the event of default in payment, default interest at customary bank rates shall be charged. In the event of non-compliance with two installments in case of partial payments, the Contractor is entitled to declare the entire outstanding amount due immediately and to demand payment of any accepted bills of exchange.

 

5.4. The Client is not entitled to withhold payments due to incomplete overall delivery, warranty or guarantee claims, or complaints.


6. Copyright and Use

 

6.1. All copyrights to the agreed services (programs, documentation, etc.) shall remain with the Contractor or its licensors. The Client shall receive exclusively the right to use the software, after payment of the agreed remuneration, solely for its own purposes, only for the hardware specified in the contract, and to the extent of the acquired number of licenses for simultaneous use at multiple workstations. By means of the present contract, only a license to use the work is acquired. Distribution by the Client is excluded in accordance with copyright law. The Client’s participation in the production of the software shall not result in the acquisition of any rights beyond the use defined in this contract. Any infringement of the Contractor’s copyrights shall result in claims for damages, and in such case full compensation shall be payable.

 

6.2. The making of copies for archiving and data backup purposes is permitted to the Client on the condition that the software does not contain an express prohibition by the licensor or third parties, and that all copyright and ownership notices are transferred unchanged to such copies.

 

6.3. If disclosure of interfaces is required to achieve interoperability of the present software, this must be commissioned by the Client from the Contractor against reimbursement of costs. If the Contractor does not comply with this request and decompilation is carried out in accordance with copyright law, the results shall be used exclusively for achieving interoperability. Misuse shall result in claims for damages.


7. Right of Withdrawal

 

7.1. In the event of exceeding an agreed delivery time due solely to fault or unlawful conduct on the part of the Contractor, the Client shall be entitled to withdraw from the respective order by registered letter if, even within a reasonable grace period, the agreed service has not been rendered in essential parts and the Client bears no fault.

 

7.2. Force majeure, labor conflicts, natural disasters, transport bans, and other circumstances beyond the Contractor’s control shall release the Contractor from the obligation to deliver or entitle the Contractor to reset the agreed delivery time.

 

7.3. Cancellations by the Client are only possible with the Contractor’s written consent. If the Contractor agrees to a cancellation, it shall have the right to charge, in addition to services already rendered and costs incurred, a cancellation fee amounting to 30% of the total project value not yet invoiced.


8. Warranty, Maintenance, Changes

 

8.1. Notices of defects are only valid if they concern reproducible defects and are documented in writing within 4 weeks after delivery of the agreed service or, in the case of customized software, after program acceptance pursuant to Clause 2.4. Within the scope of warranty, improvement shall in any case take precedence over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period, whereby the Client shall enable the Contractor to take all measures necessary for investigation and remedy of the defects. The presumption of defectiveness pursuant to § 924 ABGB shall be excluded.

 

8.2. Corrections and additions that become necessary until handover of the agreed service due to organizational or programming defects attributable to the Contractor shall be carried out by the Contractor free of charge.

 

8.3. Costs for assistance, incorrect diagnosis, as well as error and fault rectification attributable to the Client, as well as other corrections, changes, and additions, shall be carried out by the Contractor against charge. This shall also apply to the rectification of defects if program changes, additions, or other interventions have been made by the Client itself or by third parties.

 

8.4. Furthermore, the Contractor shall not assume any warranty for errors, faults, or damages resulting from improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational tools and data carriers where such are prescribed, abnormal operating conditions (in particular deviations from installation and storage conditions), or transport damage.

 

8.5. For programs subsequently modified by the Client’s own programmers or by third parties, any warranty by the Contractor shall lapse entirely.

 

8.6. Insofar as the subject matter of the order is the modification or supplementation of already existing programs, the warranty shall apply only to the modification or supplementation. The warranty for the original program shall not thereby revive.


9. Liability

 

The Contractor shall be liable for damages only if intent or gross negligence can be proven, within the framework of statutory provisions. Liability for slight negligence is excluded. Compensation for consequential damages and financial losses, loss of expected savings, loss of interest, and damages arising from claims of third parties against the Contractor shall in any case be excluded to the extent permitted by law.

 

10. Loyalty

 

The contracting parties undertake to maintain mutual loyalty. During the term of the contract and for 12 months after termination of the contract, they shall refrain from soliciting or employing, even through third parties, employees of the other contracting party who have worked on the execution of the orders. The contracting party in breach shall be obliged to pay lump-sum damages amounting to one annual salary of the employee.

 

11. Data Protection, Confidentiality

 

The Contractor shall obligate its employees to comply with the provisions pursuant to § 15 of the Data Protection Act.

 

12. Miscellaneous

 

12.1 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 a spirit of partnership to find a provision that comes as close as possible to the invalid provision.

 

12.2 All texts, plans, sketches, drafts, and other technical descriptions, as well as brochures, catalogs, samples, and the like made available to a contracting party shall – unless otherwise agreed – remain the property and intellectual property of Bytesource. Any use of the aforementioned documents without the consent of Bytesource shall entitle Bytesource to assert claims for damages and/or injunctive relief.

 

12.3 All documents or (technical) equipment made available to a contracting party shall remain the exclusive property of Bytesource and must be returned by the contracting party at the latest upon termination or fulfillment of the contractual relationship. The contracting party shall have no right of retention. Any further use without the consent of Bytesource shall entitle Bytesource to assert claims of ownership, damages, and/or injunctive relief.

 

12.4 If documents or equipment are provided by the contracting party, the latter shall be liable for their correctness and proper condition, unless the inaccuracy or unusability is obvious.

 

12.5 The use of any intellectual or technical innovation acquired within the framework of training and further education events shall remain the property of Bytesource, unless mandatory provisions of consumer protection law provide otherwise.