General Terms and Conditions
GTC | GENERAL TERMS AND CONDITIONS
General Terms and Conditions of Sensotix FlexCo (Version dated 8 August 2019)
For the purposes of these General Terms and Conditions, Sensotix FlexCo is referred to as the “Contractor” and its customer as the “Client”.
1. Scope and Validity of the Contract
1.1. All orders and agreements shall be legally binding only if made in writing and duly signed on behalf of the Contractor. They shall bind the Contractor only to the extent specified in the order confirmation. The Client’s terms and conditions of purchase are hereby excluded from both the transaction concerned and the entire business relationship. Unless expressly stated otherwise, quotations are non-binding.
2. Services and Acceptance
2.1. An order may cover:
- Rental and lending of hardware with installed software;
- Ongoing support and customisation of software used by the Client;
- Preparation of organisational concepts;
- High-level and detailed analyses;
- Supply of software libraries and standard software;
- Acquisition of rights to use software products;
- Acquisition of non-exclusive licences to use copyright-protected works;
- Assistance with commissioning;
- Telephone consultancy;
- Software maintenance;
- Other services.
2.2. The nature and scope of the development of bespoke organisational concepts and software shall be based on the binding information, documents and supporting resources supplied in full by the Client. These shall include realistic test data and adequate testing facilities, which the Client shall provide in a timely manner, during normal working hours and at its own expense. If the Client is already using the system provided for testing in a live production environment, the Client shall be responsible for backing up the production data.
2.3. Bespoke software shall be developed on the basis of a written specification of services, either prepared by the Contractor for a fee using the documents and information made available to it or provided by the Client. The Client shall review this specification for accuracy and completeness and indicate its approval in writing. Subsequent change requests may require separate agreements on delivery dates and prices.
2.4. The Client shall carry out acceptance testing of each relevant software package comprising bespoke software or software adaptations no later than four weeks after delivery. The Client shall confirm acceptance in an acceptance record. Acceptance testing shall assess accuracy and completeness against the specification of services accepted by the Contractor, using the test data provided pursuant to Clause 2.2.
If the Client allows the four-week period to expire without accepting the software, the software delivered shall be deemed accepted upon expiry of that period. In any event, use of the software by the Client in a live production environment shall constitute acceptance.
The Client shall report any defects, meaning deviations from the specification of services agreed in writing, to the Contractor with sufficient supporting documentation. The Contractor shall endeavour to remedy such defects as promptly as possible. Where material defects have been reported in writing, meaning defects that prevent live production use from commencing or continuing, a further acceptance procedure shall be required after the defects have been remedied.
The Client shall not be entitled to refuse acceptance of the software on account of minor defects.
2.5. By placing an order for software libraries or standard software, the Client confirms that it is familiar with the functionality and scope of the software ordered.
2.6. If, during the performance of the work, it becomes apparent that execution of the order in accordance with the specification of services is factually or legally impossible, the Contractor shall notify the Client immediately. If the Client does not amend the specification accordingly or otherwise establish the conditions necessary to make performance possible, the Contractor may refuse to perform the order.
If the impossibility of performance results from an omission by the Client or a subsequent amendment to the specification by the Client, the Contractor shall be entitled to withdraw from the order. The Client shall reimburse the costs and expenses incurred in connection with the Contractor’s work up to that point, together with any dismantling costs.
2.7. Software media, documentation and specifications shall be dispatched at the Client’s expense and risk. Any additional training or explanations requested by the Client shall be charged separately. Insurance shall be arranged only at the Client’s request.
2.8. Accessibility measures, including website accessibility, within the meaning of the Austrian Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz – BGStG) are expressly excluded from the quotation unless specifically requested by the Client.
If accessibility measures have not been agreed, the Client shall be responsible for assessing whether the services comply with the Austrian Federal Disability Equality Act. The Client shall also review any content it provides for compliance with applicable law, particularly competition, trade mark, copyright and administrative law.
Where content has been specified by the Client, the Contractor shall not be liable for its legal compliance in cases of slight negligence or after having fulfilled any applicable duty to warn the Client.
2.9. The Contractor reserves the right to subcontract all or part of the services to be provided.
3. Prices, Taxes and Charges
3.1. Unless otherwise stated, all prices are quoted in euros and exclude value added tax (VAT). They apply only to the order concerned. Prices are quoted on the basis of delivery at the Contractor’s registered office or business premises. The cost of data storage media and any applicable duties or charges on the contract shall be invoiced separately.
3.2. Software libraries and standard software shall be charged at the list prices applicable on the date of delivery. All other services, including organisational consultancy, programming, training, migration support and telephone consultancy, shall be charged according to the time spent at the rates applicable on the date the services are performed.
Any deviation from the estimated time on which the contract price is based, to the extent that the Contractor is not responsible for that deviation, shall be charged according to the time actually spent.
3.3. Travel expenses, daily allowances and overnight accommodation allowances shall be invoiced separately to the Client at the applicable rates. Travel time shall be treated as working time.
4. Delivery Dates
4.1. The Contractor shall endeavour to meet the agreed performance or completion dates as closely as possible.
4.2. The target performance dates can be met only if, by the dates specified by the Contractor, the Client has completed all necessary preparatory work and provided all required documents in full, in particular the specification of services approved by the Client pursuant to Clause 2.3, and has fulfilled its cooperation obligations to the extent required.
The Contractor shall not be responsible for delivery delays or cost increases resulting from incorrect, incomplete or subsequently amended details, information or documents supplied by the Client. Such circumstances shall not place the Contractor in default. Any resulting additional costs shall be borne by the Client.
4.3. Where an order comprises several units or software programs, the Contractor shall be entitled to make partial deliveries and issue partial invoices.
5. Payment
5.1. Invoices issued by the Contractor, including VAT, shall be payable no later than 14 days after receipt, without any deduction and free of charges to the Contractor. The payment terms agreed for the overall order shall also apply to partial invoices.
5.2. Where an order comprises several units, such as software programs, training services or implementation stages, the Contractor shall be entitled to issue an invoice after delivery of each individual unit or service.
5.3. Compliance with the agreed payment dates is an essential condition for delivery and contractual performance by the Contractor. Failure to make the agreed payments shall entitle the Contractor to suspend ongoing work and withdraw from the contract. The Client shall bear all associated costs and loss of profit.
In the event of late payment, default interest shall be charged at the rate customarily charged by banks. If payment is to be made in instalments and the Client defaults on two instalments, the Contractor shall be entitled to declare the outstanding balance immediately due and payable and to call for payment of any accepted bills of exchange delivered to it.
5.4. The Client shall not be entitled to withhold payments on account of incomplete delivery of the overall order, claims under a guarantee or statutory warranty, or complaints concerning defects.
6. Copyright and Rights of Use
6.1. Upon payment of the agreed fee, the Contractor shall grant the Client a non-exclusive, non-transferable, non-sublicensable and time-limited right to use the software on the hardware specified in the contract, subject to the number of concurrent-use licences purchased. All other rights shall remain with the Contractor.
The Client’s participation in the development of the software shall not confer any rights beyond the rights of use stipulated in the contract. Any infringement of the Contractor’s copyright shall give rise to claims for damages, with full compensation being payable in such cases.
6.2. If disclosure of the interfaces is necessary to establish interoperability with the software concerned, the Client shall commission the Contractor to provide such disclosure against reimbursement of the associated costs.
If the Contractor does not comply with this request and decompilation is carried out in accordance with the Austrian Copyright Act (Urheberrechtsgesetz), the results shall be used exclusively to establish interoperability. Any misuse shall give rise to liability for damages.
6.3. Where the Client is supplied with software for which the licensing rights are held by a third party, such as standard Microsoft software, the grant of rights of use shall be governed by the licence terms of that third party or manufacturer.
7. Right of Withdrawal
7.1. If an agreed delivery period is exceeded solely due to the Contractor’s fault or unlawful conduct, the Client shall be entitled to withdraw from the order concerned by registered letter, provided that substantial parts of the agreed services remain outstanding after expiry of a reasonable additional period for performance and the Client is not at fault.
7.2. Force majeure, industrial disputes, natural disasters, transport blockades and other circumstances beyond the Contractor’s control shall release the Contractor from its delivery obligation or entitle it to reschedule the agreed delivery date.
7.3. Cancellation by the Client shall require the Contractor’s written consent. If the Contractor agrees to a cancellation, it shall be entitled to charge, in addition to the services already performed and costs already incurred, a cancellation fee equal to 30% of the portion of the total project order value that has not yet been invoiced.
8. Warranty, Maintenance and Modifications
8.1. The Contractor warrants that the software performs the functions described in the accompanying documentation, provided that it is used as intended on the required hardware and with the required operating system.
8.1.1. Rectification of defects shall be subject to the following conditions:
-
The Client describes the defect in sufficient detail in a defect report to enable the Contractor to identify it;
-
The Client provides the Contractor with all documents required to rectify the defect;
-
Neither the Client nor any third party for whose actions the Client is responsible has interfered with the software;
-
The software is operated under the intended operating conditions and in accordance with the documentation.
8.1.2. In the event of a warranty claim, rectification shall in all cases take precedence over a price reduction or rescission of the contract. Where a complaint concerning a defect is justified, the defect shall be remedied within a reasonable period. The Client shall enable the Contractor to take all measures necessary to investigate and remedy the defect.
The statutory presumption that a defect existed at the time of delivery under Section 924 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch – ABGB) is excluded.
8.2. The Contractor shall carry out, free of charge, any corrections or additions that become necessary before delivery of the agreed services as a result of organisational or programming defects for which the Contractor is responsible.
8.3. The Contractor shall charge for assistance, incorrect fault diagnosis and the rectification of errors and malfunctions for which the Client is responsible, as well as for other corrections, modifications and additions.
This shall also apply to the rectification of defects where the Client or a third party has made modifications or additions to the software or otherwise interfered with it.
8.4. Furthermore, the Contractor shall not provide any warranty for errors, malfunctions or damage resulting from improper use; changes to operating system components, interfaces or parameters; the use of unsuitable organisational resources or data storage media where requirements for these have been specified; abnormal operating conditions, particularly deviations from the specified installation and storage conditions; or damage in transit.
8.5. The Contractor’s warranty shall cease to apply to software subsequently modified by the Client’s own programmers or by third parties.
8.6. Where the order concerns the modification or enhancement of existing software, the warranty shall apply only to that modification or enhancement. It shall not reinstate the warranty for the original software.
8.7. Warranty claims shall become time-barred six (6) months after delivery.
9. Liability
9.1. The Contractor shall be liable to the Client for damage proven to have been caused by the Contractor’s fault only in cases of gross negligence or wilful misconduct. The same shall apply to damage attributable to third parties engaged by the Contractor. Liability for personal injury caused by fault shall be unlimited.
9.2. Liability for indirect damage, including loss of profit, costs associated with business interruption, loss of data and third-party claims, is expressly excluded.
9.3. Claims for damages shall become time-barred in accordance with the statutory provisions, but in any event no later than one year after the claimant becomes aware of the damage and the identity of the party responsible.
9.4. If the Contractor uses third parties to perform the work and warranty or liability claims arise against those third parties in that connection, the Contractor shall assign those claims to the Client. In such cases, the Client shall seek recourse primarily against those third parties.
9.5. If data backup has expressly been agreed as a service, liability for loss of data shall not be excluded under Clause 9.2. However, liability for restoring the data shall be limited to 10% of the order value per loss event and shall in no event exceed EUR 15,000.
Any warranty claims or claims for damages by the Client beyond those specified in this contract are excluded, irrespective of their legal basis.
10. Duty of Loyalty
10.1. The parties undertake to act loyally towards each other. During the term of the contract and for 12 months after its termination, neither party shall solicit or employ, whether directly or through third parties, any employee of the other party who has worked on the performance of the orders.
A party in breach of this obligation shall pay liquidated damages equal to one year’s salary of the employee concerned.
11. Data Protection, GDPR and Confidentiality
11.1. The Contractor shall require its employees to comply with the provisions of Section 15 of the Austrian Data Protection Act (Datenschutzgesetz – DSG).
11.2. The Contractor is subject to the provisions of the European Union’s General Data Protection Regulation (GDPR).
The Client shall be responsible for assessing whether a data processing agreement is required in connection with the order. However, as part of its duties to cooperate and provide information, the Contractor shall, where relevant in the individual case, draw the Client’s attention to the need for such an assessment or to the possible requirement for a data processing agreement.
12. Miscellaneous
12.1. If any provision of this contract is or becomes invalid, the remaining provisions shall remain unaffected. The parties shall cooperate in good faith to agree a provision that reflects the invalid provision as closely as possible.
13. Final Provisions
13.1. Unless otherwise agreed, the relationship shall be governed exclusively by Austrian law and the statutory provisions applicable to transactions between businesses, even if the order is performed abroad.
The court having subject-matter jurisdiction for the location of the Contractor’s registered office shall have exclusive territorial jurisdiction over any disputes.
For sales to consumers within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz – KSchG), the foregoing provisions shall apply only to the extent that they do not conflict with mandatory provisions of that Act.