General Terms and Conditions

AGB | GENERAL TERMS AND CONDITIONS

General Terms and Conditions of Sensotix GmbH (Version dated 08/08/2019)

1. Scope and Validity of the contract

1.1. All orders and agreements shall only be legally binding if they are signed by the Contractor in writing and in accordance with the company name and shall only be binding to the extent specified in the order confirmation. The Client's terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are always subject to change.

2. Performance and Testing

2.1. The subject of an order may be
- Leasing and rental of hardware with installed software
- Ongoing support (customising) of software used by the customer
- Development of organisational concepts
- Global and detailed analyses
- Delivery of library (standard) programmes
- Acquisition of usage authorisations for software products
- Acquisition of licences for use
- Assistance with commissioning
- Telephone consulting
- Programme maintenance
- Other services
2.2. The development of individual organisational concepts and programs shall be carried out in accordance with the type and scope of the binding information, documents and aids provided in full by the client. This shall also include practical test data as well as test facilities to a sufficient extent, which the client shall make available in good time, during 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 customised programmes is the written service description, which the Contractor prepares or the Client provides against a cost calculation based on the documents and information made available to it. This service description must be checked by the client for correctness and completeness and must be endorsed by the client. Subsequent requests for changes may lead to separate deadline and price agreements.
2.4. Individually created software or programme adaptations require programme acceptance by the client for the respective programme package concerned no later than four weeks after delivery. This shall be confirmed by the client in a protocol. (Check for correctness and completeness on the basis of the service description accepted by the Contractor using the test data provided under point 2.2). If the Client allows the period of four weeks to elapse without programme acceptance, the delivered software shall be deemed to have been accepted on the end date of the aforementioned period. If the software is used in live operation by the client, the software shall in any case be deemed to have been accepted.

Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported by the Client to the Contractor with sufficient documentation, who shall endeavour to rectify the defects as quickly as possible. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required after the defects have been rectified.
The client is not authorised to refuse acceptance of software due to insignificant defects.

2.5. When ordering library (standard) programmes, the client confirms with the order that he is aware of the scope of services of the ordered programmes.
2.6. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the Contractor shall be obliged to notify the Client of this immediately. If the client does not amend the service description to this effect or does not create the conditions that make execution 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 shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor's activities as well as any dismantling costs shall be reimbursed by the Client.

2.7. Programme carriers, documentation and service descriptions shall be sent 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 taken out 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 Equal Opportunities for Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz - BGStG)’ is not included in the offer, unless this has been requested separately/individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the admissibility of the service with regard to the Federal Disability Equality Act. The client must also check the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilment of any duty to warn the customer, the contractor shall not be liable for the legal admissibility of content if this was provided by the customer.
2.9. The Contractor reserves the right to delegate services to be provided or parts thereof to subcontractors.

3. Prices, taxes and fees

3.1. All prices are in euros excluding VAT, unless otherwise stated. They apply only to the present order. The prices quoted are ex Contractor's registered office or place of business. The costs of data carriers and any contract fees shall be invoiced separately.
3.2. 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 work involved 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 invoiced as actually incurred.
3.3. The costs for travelling, daily and overnight allowances shall be invoiced separately to the Client at the rates applicable at the time. Travelling time shall be considered working time.

4. Delivery date

4.1. The Contractor shall endeavour to meet the agreed dates of performance (completion) as precisely as possible.
4.2. The targeted fulfilment dates can only be met if the Client provides all necessary work and documents in full by the dates specified by the Contractor, in particular the service description accepted by it in accordance with point 2.3, and fulfils its obligation to cooperate to the extent required.
Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided are not the responsibility of the Contractor and cannot lead to default on the part of the Contractor. Any resulting additional costs shall be borne by the Client.
4.3. In the case of orders comprising several units or programmes, the Contractor shall be entitled to make partial deliveries or issue partial invoices.

5. Payment

5.1. Invoices issued by the Contractor, including VAT, shall be payable within 14 days of receipt of the invoice without any deductions and free of charges. The terms of payment specified for the overall order shall apply analogously to partial invoices.
5.2. In the case of orders comprising several units (e.g. programmes and/or training courses, implementation in partial steps), the Contractor shall be 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 performance of the delivery or fulfilment of the contract by the Contractor. Failure to comply with the agreed payments shall entitle the Contractor to suspend ongoing work and withdraw from the contract. All associated costs and loss of profit shall be borne by the Client.
In the event of late payment, interest on arrears shall be charged at the usual bank rate. If two instalments are not paid on time, the Contractor shall be entitled to enforce the loss of deadlines and to call in any acceptances handed over.
5.4. The Client shall not be entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints.

6. Copyright and use

6.1. After payment of the agreed remuneration, the Contractor shall grant the Client a non-exclusive, non-transferable, non-sublicensable and time-limited right to use the software for the hardware specified in the contract and to the extent of the number of licences acquired for simultaneous use. All other rights shall remain with the Contractor.
The Client's co-operation in the production of the software shall not result in the acquisition of any rights beyond the use specified in the present contract. Any infringement of the Contractor's copyrights shall result in claims for damages, whereby full satisfaction shall be provided in such a case.
6.2. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this must be ordered from the Contractor by the Client against payment of costs. If the Contractor does not fulfil this requirement and decompilation is carried out in accordance with copyright law, the results are to be used exclusively to establish interoperability. Misuse shall result in compensation for damages.
6.3. If the client is provided with software 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 terms of the licence holder (manufacturer).

7. Right of cancellation

7.1. 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 order in question by registered letter if the agreed service is not provided in essential parts even within the reasonable grace period and the Client is not at fault.
7.2. Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond the Contractor's control shall release the Contractor from the delivery obligation or allow the Contractor to reschedule 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, it shall be entitled to charge a cancellation fee amounting to 30% of the unbilled order value of the overall project in addition to the services rendered and costs incurred.

8. Warranty, maintenance, modifications

8.1. The Contractor warrants that the software fulfils the functions described in the associated documentation, provided that the software is used appropriately on the necessary hardware with the necessary operating system.

8.1.1. The prerequisite for error correction is that

the Client sufficiently describes the error in an error message and this can be determined by the Contractor;
the Client provides the Contractor with all documents required to rectify the error;
the Client or a third party attributable to the Client has not tampered with the software;
the software is operated under the intended operating conditions in accordance with the documentation.

8.1.2. In the case of warranty, improvement shall in any case take precedence over price reduction or cancellation. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to investigate and remedy the defects.

The presumption of defectiveness pursuant to § 924 ABGB shall be excluded.

8.2. Corrections and additions that prove necessary before the agreed service is handed over due to organisational and programming defects for which the Contractor is responsible shall be carried out by the Contractor free of charge.

8.3. Costs for assistance, misdiagnosis and 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 a third party.
8.4. Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage attributable to improper operation, modified 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.
8.5. The Contractor shall not provide any warranty for programmes that are subsequently modified by the Client's own programmers or third parties.
8.6. Insofar as the subject of the order is the modification or supplementation of existing programmes, the warranty shall apply to the modification or supplementation. This shall not revive the warranty for the original programme.
8.7. Warranty claims shall expire six (6) months after handover.

9. Liability

9.1. The Contractor shall only be liable to the Client for damage demonstrably caused by it 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.
9.2. Liability for indirect damages - such as loss of profit, costs associated with business interruption, loss of data or third-party claims - is expressly excluded.
9.3. Claims for damages shall become statute-barred in accordance with the statutory provisions, but at the latest one year after the damage and the damaging party become known.
9.4. If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims against these third parties arise in this context, the Contractor shall assign these claims to the Client. In this case, the Client shall give priority to these third parties.
9.5. If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from point 9.2, but shall be limited to a maximum of EUR 10 % of the order amount per case of damage, up to a maximum of EUR 15,000. Warranty claims and claims for damages on the part of the Client that go beyond those specified in this contract - irrespective of the legal basis - are excluded.

10. Loyalty

10.1. The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, including via third parties, of employees of the other contracting party who have worked on the realisation of the orders for the duration of the contract and for 12 months after termination of the contract. The contracting party in breach shall be obliged to pay liquidated damages in the amount of one year's salary of the employee.

11. Data protection, DSGVO / GDPR, Confidentiality

11.1. The Contractor shall oblige its employees to comply with the provisions of Section 15 of the Data Protection Act.
11.2. The Contractor is subject to the provisions of the European General Data Protection Regulation (GDPR). The Client shall be responsible for examining the necessity of an order processing agreement (AVV) to be concluded for the order; however, in the sense of a duty to cooperate and provide information, the Contractor shall point out the necessary examination or the possible necessity of an AVV in individual cases.

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 work together in partnership to find a provision that comes as close as possible to the invalid provisions.

13. Final provisions

13.1. Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. Any disputes shall be subject exclusively to the local jurisdiction of the court with subject-matter jurisdiction for the Contractor's place of business. 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 provide for other mandatory provisions.