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The following terms are valid for
all services and deliveries provided by the seller
within the framework of this contract in connection with
computer systems installed in
Austria. The buyer’s terms of purchase have no legal force,
in connection either with
the transactions covered by this agreement or, for that matter,
with the entirety of our
business dealings.
All offers are subject to change without notice.
2.1 Unless otherwise agreed, the services
covered by this contract will be carried
out by the seller, at his choosing either at the site of
the computer system or in
the business offices of the seller, during seller’s normal
business hours. Should
the buyer wish services to be provided outside of normal
business hours as an
exception, the additional costs will be invoiced separately.
The choice of
personnel to carry out the contractual services is the responsibility
of the seller,
who may bring in third parties.
2.2 The seller agrees to supply the
software programs contracted for in this
agreement in accordance with one of the following contractually
agreed classes
of support:
Support Class A
· Information Service: The buyer will be informed about new
programs,
available updates, and programs under development, etc.
· Hotline Service: The seller will be available to the buyer
during agreed-upon
hotline hours for advisory support should problems arise
from time to time in
connection with the use of the software programs covered
by this contract.
In case of repeated use of the hotline for very similar problems,
the seller has
the right to make further advisory support as covered by
this agreement
dependent on additional buyer training outside the scope
of this contract and
at the buyer’s expense.
· Archiving and Provision of the Software Programs Covered
Under This
Contract: The seller obligates himself to archive the software
programs
developed by him and covered by this contract in computer-readable
form,
along with documentation in sufficient detail to fulfill
the obligations
established by this contract. Further, the seller will make
these available to
the buyer as necessary, in accordance with the terms of the
purchase
agreement.
Support Class B
· Update Service: At a date determined by him, the seller
will make available
to the buyer the program updates provided by the producer.
These updates
comprise repair of mistakes, correction of possible program
problems that do
not occur either during the test run or during use within
the warranty period,
enhancement of the scope of performance, changes in the software
programs
consequent on legal changes.
Legal changes that result in new program logic, that is,
changes in existing
functions that lead to new programs and program modules,
as well as
possibly necessary additions to the hardware, are not included
in the
performance obligations covered by this contract. These programs
will be
offered separately to the buyer along with the required data
carriers and
documentation.
Support Class C
· Installation of Program Updates: The seller is responsible
for copying onto or
setting up the new program updates on the computer system
covered by this
contract.
· Problem Solving on Location: In case problems arising within
the scope of
the contractually agreed-on services cannot be resolved by
the hotline
service, remote support, etc., the seller will undertake
to correct the
problems at the site of the computer system.
2.3 A mistake that requires correcting
is considered to exist if a software program
covered by this contract does not function in accordance
with its performance
specifications or documentation as set forth in the most
recent valid version, and
the buyer can so demonstrate.
Buyer complaints are to be addressed to the seller in writing.
For purposes of
careful investigation of possible mistakes the buyer is obligated
to make
available to the seller at no cost the relevant computer
system (for systems
connected online with other computers the relevant connection
is to be
included), software programs, protocols, diagnostic backup,
and sufficient data
for test purposes during the seller’s usual business hours
and to provide support
to the seller. Identified mistakes for which the seller is
responsible are to be
rectified within an appropriate period of time. The seller
is freed of this
responsibility when solutions are hindered by deficiencies
in the domain of the
buyer and which are not corrected by him.
The correction of a defect is to be carried out by a software
update or by
appropriate circumventory solutions.
3.1 Cost of travel, accommodation,
and travel time of seller’s personnel charged
with carrying out the service, if not explicitly otherwise
agreed in this contract.
3.2 In case of unauthorized use of
services the seller may invoice the buyer for
accrued costs at the respective valid rates.
3.3 Services that result from changes
in the operating system or in hardware and/or
from changes in mutually dependent software programs and
interfaces not
covered by this contract.
3.4 Program customization or new programming.
3.5 Program changes due to changes
in statutory requirements, if they require a
change in program logic.
3.6 The seller will be freed of all
responsibilities under the present contract, if
program changes have been carried out by employees of the
buyer or by third
parties in the software programs covered by this contract
without prior
agreement from the seller or if the software programs have
not been used as
designated.
3.7 The rectification of defects caused
by the buyer or third parties.
3.8 Losses or damages that result
either directly or indirectly from actions or
omissions on the part of the buyer or user in operating the
system
3.9 Data conversions, data recovery,
and interface adjustments.
4.1 Prices quoted are understood to
be prices ex works. The costs of program
carriers (e.g., magnetic tapes, magnetic diskettes, magnetic
tape cassettes, etc.)
as well as documentation and any contract fees will be invoiced
separately.
4.2 For services that can be carried
out on the premises of the seller but are carried
out as an exception on the premises of the buyer at his request,
the buyer bears
the costs of travel, accommodation and travel time for the
seller’s personnel who
are charged with carrying out the service.
4.3 If labor and material costs, or
other costs and charges, increase after the
conclusion of the contract, the seller has the right to increase
accordingly the
flat-rate amounts shown separately and to charge the buyer
at the higher rate
from the beginning of the month following the cost increases.
These increases
are deemed to be accepted by the buyer a priori, if they
do not exceed 10% per
annum.
4.4 All fees and taxes (especially
sales tax) are calculated in accordance with the
laws in effect at the time. Should the tax authorities subsequently
impose
additional taxes or levies, these will be borne by the buyer.
5.1 The seller will endeavor to provide
answers to buyer inquiries within a
reasonable period of time during the usual business hours
of the seller.
5.2 The buyer does not have the right
to withdraw from the contract nor is he
entitled to damages in case a prospective delivery date is
not adhered to.
5.3 Partial and advance delivery are
permissible.
6.1 The agreed-upon flat-rate amounts
are payable by the buyer in advance for the
entire calendar year or the part of the calendar year remaining.
6.2 Invoices presented by the seller
fall due 14 days after the date of the invoice,
without any deductions and free of charges.
6.3 Payment on the agreed-upon dates
is an essential condition for delivery and for
fulfillment of the contract by the seller. Non-compliance
on the part of the buyer
with the agreed-upon payment deadlines gives the seller the
right to discontinue
current work and to withdraw from the contract. All costs
connected therewith
as well as loss of profit are to be borne by the buyer. In
case of delayed payment,
interest on payment in arrears will be charged at customary
bank rates. In case
two consecutive installments are not paid on time, the seller
has the right to
enforce non-compliance and to call accepted drafts.
6.4 The buyer is not entitled to withhold
payment because of incomplete total
delivery, guarantee or warranty claims, or complaints.
The contractual relationship, which
assumes the professional installation of the
properly procured software program covered by the contract,
begins when the
contract has been signed and is deemed to continue for an
unlimited period of
time. This contract can be cancelled by either party to it
in writing at least 3
months before the end of the calendar year, but not prior
to the end of the 36 th
month of the contract. If the software program covered by
the contract is proved
to have been taken out of operation, the contractual relationship
can be
prematurely cancelled on three-months’ notice. In this case,
the aliquot portion
of the annual flat rate for the services not used will be
transferred to an Austrian
bank account specified by the buyer.
The seller is liable for damages insofar
as intent or gross negligence can be
proven, within the framework of statutory regulations. Liability
is excluded in
case of slight negligence.
Compensation for subsequent damages and financial loss, not
realized savings,
loss of interest, and for damages arising from third-party
claims against the seller
is in every case excluded, to the extent legally permissible.
The location of the computer systems
covered by this contract is established
contractually. In case of a possible change in location of
the computer systems
the seller is entitled to establish a new flat-rate amount
or to cancel the contract
prematurely.
10.1 The seller or his licensors are
entitled to all copyrights on the agreed services
(programs, documentation, etc.). The buyer obtains only the
right to use the
software after payment of the agreed remuneration strictly
for his own purposes,
only with the hardware as specified in the contract, and,
in accordance with the
number of licenses acquired, simultaneously at different
workplaces. By this
contract the buyer acquires merely the authorization to use
the software.
Distribution of the product by the buyer is not permitted,
as per the copyright
law. The buyer does not by virtue of participating in the
production of the
software acquire any rights beyond its use as set forth in
this contract. Any
infringement of the copyrights of the seller will result
in the right to claim
damages, in which case the seller is entitled to full satisfaction.
10.2 The buyer is permitted to make
copies for archival and data backup purposes
only on condition that the software does not contain an express
prohibition on
the part of the licensor or a third party and that all notices
of copyright and
ownership are transferred unchanged into these copies.
10.3 Should the disclosure of the
interfaces be necessary to produce the
interoperability of the software covered by this contract,
the seller is to request
this of the buyer with remuneration of costs. If the seller
does not comply with
this stipulation and decompilation follows in accordance
with copyright law, the
results are to be used exclusively for the production of
interoperability. Misuse
will result in claims for damages.
The parties to the contract obligate
themselves to reciprocal loyalty. They will
not hire away staff or employ, including by way of third
parties, staff of the other
party to the contract who have worked on the realization
of the projects, during
the duration of the contract or for 12 months after the end
of the contract. A
party to the contract in violation of this clause is obliged
to pay lump-sum
damages in the amount of one annual salary of the employee.
The seller obligates his employees
to observe the provisions of §20 of the Data
Privacy Law.
Should individual terms of this contract
be or become inoperative, this will not
affect the remaining terms of this contract. The parties
to the contract will work
in a spirit of partnership to find an arrangement that approximates
as nearly as
possible the inoperative terms.
Insofar as not otherwise agreed, the
statutory regulations applicable to registered
merchants are exclusively those in force under Austrian law.
This is the case also
when the order is carried out outside of Austria. In case
of conflict, it is agreed
that only the responsible local court in the seller’s place
of business has
jurisdiction. For sales to consumers within the meaning of
the consumer
protection law, the above terms are valid only insofar as
the consumer
protection law does not insist on other conditions. Noncompliance
with
essential parts of this contract entitles the parties to
this contract to premature
termination of the contract without notice.
APC Consulting GmbH
Management consulting
March 2006
./. General terms & conditions
- Greko Software
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