GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (GTC) apply to services and deliveries of all kinds provided by yITs your IT solutions GmbH as contractor (“CO”) within the scope of the contractual relationship concluded with the client (“CL”). The contractual relationship shall be established by the signing of the offer by the Principal or a separate order and by an order confirmation by the CO. The CO reserves the right to accept or reject offers of the CL at his own discretion.

These GTC as amended shall also apply to all present and future services and deliveries provided by the CO to the CL, even if no express reference is made to them in individual cases upon conclusion of the contract. Separate terms and conditions of purchase of the CL shall only apply if they are expressly confirmed in writing by yITs your IT solutions GmbH.

Apart from this contract, there are no further verbal or written agreements between the contracting parties with regard to the subject of performance. All amendments or supplements to this contract must be made in writing.

Offers of the CO are in principle nonobligatory.

In case of different understanding, the German GTCs take precedence.

PERFORMANCE AND SCOPE OF DELIVERY

The CO reserves the right to have services performed by third parties commissioned by him. The basis for the provision of services shall be the written service description. Unless otherwise agreed, the performance of the service defined in the service description shall be carried out at the CO’s site on weekdays during normal working hours, Monday to Friday from 8:00 to 18:00. If services are provided outside these working hours at the request of the CL, a surcharge of 100% shall be invoiced separately. The smallest unit for billing is 30 minutes. In the case of orders comprising several units or programs, the CO shall be entitled to render partial services and issue partial invoices.

DATE OF DELIVERY

The CO will endeavor to meet the agreed deadlines for performance (milestones/completion/…) as closely as possible.

Compliance with the deadlines is only possible if the CL fulfills the necessary obligation to cooperate. The CO is not responsible for delays that occur due to the conduct of the CL and cannot lead to a delay on the part of the CO. Any additional costs shall be borne by the CL.

TERMS OF PAYMENT AND INVOICE

Invoices issued by the CO are due 30 days after the invoice date without deductions and free of expense. The granting of discounts is excluded.

Compliance with the agreed payment dates shall constitute an essential condition for the execution of the delivery or performance of the contract by the CO.

In the event of late payment, interest on arrears will be charged at the rate customary in banking. In the event of non-compliance with two installments in the case of partial payments, the CO is entitled to let loss of dates come into effect and to make handed over acceptances due for payment.

CL is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.

All services remain the property of yITs your IT solutions GmbH until full payment has been made.

In case of on-site services, travel costs and expenses are to be borne by the CL in any case. For service provision within Vienna, no travel expenses are incurred for the client.

DUTY OF THE CLIENT TO COOPERATE

For the provision of services, the CL shall make available free of charge its computer system in the required hardware and software development environment. The responsibility for the daily backup of the work results lies with the CL.

RIGHT OF WITHDRAWAL

In the event of delay due to the sole fault of the CO, the CL shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts even within the reasonable grace period and the CL is not at fault.

Force majeure, labor disputes, natural disasters and transport blockades as well as other circumstances beyond the CO’s control shall release the CO from the delivery obligation or allow the CO to reschedule the agreed performance dates.

Non-compliance with the agreed payments despite a reminder and a reasonable grace period, as well as non-compliance with the CL’s obligation to cooperate entitle the CO to stop the ongoing work and to withdraw from the contract. All associated costs as well as the loss of profit have to be borne by the CL.

CANCELLATION

Cancellations by the CL shall only be possible with the written consent of the CO. If the CO agrees to a cancellation, he shall be entitled to charge a cancellation fee in the amount of 30% of the order value of the overall project not yet invoiced, in addition to the services rendered and costs incurred.

WARRANTY

The CO warrants that

• The performance of the Services will be in accordance with the state of the art;
• An appropriate standard of care and quality will be applied in the performance of the contract;

The CO will not be responsible for successful performance of the Services in the sense of a contract for work and services. The services do not require acceptance unless this has been expressly agreed in writing.

A prerequisite for the elimination of errors is that

• the CL describes the error sufficiently in an error message and this can be determined for the CO;
• the CL provides the CO with all documents required for the elimination of the error;
• the CL or a third party attributable to it has not interfered with the software/configuration;
• the software is operated under the intended operating conditions in accordance with the documentation.

In case of warranty, improvement shall in any case have priority over price reduction or change. In case of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the CL shall enable the CO to take all measures necessary to examine and remedy the defects.

                The presumption of defectiveness pursuant to § 924 ABGB is deemed excluded.

Costs for assistance, misdiagnosis as well as the elimination of errors and malfunctions for which the CL is responsible, as well as other corrections, changes and additions not covered by the warranty, shall be carried out by the CO against payment. This also applies to the elimination of defects if program changes, additions or other interventions have been made by the CL itself or by third parties. For programs which are subsequently changed by the CL’s own programmers or by third parties, any warranty on the part of the CO lapses.

Furthermore, the CO does not assume any warranty for errors, malfunctions or damages which are due to

• improper operation
• changed operating system components
• interfaces and parameters
• use of unsuitable organization tools and data carriers, as far as such are prescribed
• abnormal operating conditions (in particular deviations from the installation and storage conditions)
• as well as transport damages

If the subject of the order is the modification or supplementation of already existing programs, the warranty refers to the modification or supplementation. The warranty for the original program shall not be revived thereby.

Warranty claims become time-barred three (3) months after delivery. If the service owed is made available to the CL by electronic data transmission, the service is deemed to have been rendered at the time of the verifiable data transmission. The time of data transmission shall be decisive.

LIABILITY

The CO is liable for damages caused by his employees or vicarious agents intentionally or by gross negligence as well as for personal injuries.

Any further liability as well as liability for consequential damages, indirect and indirect damages, incidental damages of any kind, loss of profit and loss of sales as well as loss of data is excluded for the Contractor in any case.

In this context, the CL undertakes to comply with reasonable damage mitigation obligations.

Claims for damages become statute-barred in accordance with the statutory provisions, but at the latest upon expiry of 3 months from knowledge of the damage and the damaging party. Claims for damages become statute-barred in any case (in absolute terms) 2 years after performance of the service.

If the CO performs the service with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the CO assigns these claims to the CL. In this case, the CL shall give priority to these third parties.

Claims for damages against the CO shall be limited to the amount of the agreed liability insurance sum from the underlying liability insurance contract of the CO. Any compensation for damages in excess of this liability insurance sum is therefore expressly excluded.

LOYALITY

The contracting parties undertake to be loyal to each other. They will refrain from any enticement and employment, also through third parties, of employees who have worked on the realization of the orders, of the other contracting party for the duration of the contract and 12 months after the termination of the contract. The contracting party violating this provision shall be obliged to pay to the other contracting party liquidated damages in the amount of one gross annual salary of the poached employee.

DATA PROTECTION AND CONFIDENTIALITY

Employees of the CO have to keep personal data from data processing entrusted to them or which have become accessible to them exclusively on the basis of their professional employment secret, irrespective of other statutory obligations to maintain secrecy, unless there is a legally permissible reason for transferring the personal data entrusted or which have become accessible to them (data secrecy). Employees have been familiarized with the data protection regulations relevant to them.

The CL expressly agrees that in the course of the contract personal data of the CL (necessary contact persons & responsible persons – in this case name, company address, company e-mail, web address and telephone number) may be forwarded to third parties necessary for the provision of services.

This contract and its enclosures constitute confidential information. Both contracting parties agree that this information may not be disclosed to third parties.

RIGHTS OF USE

The CL undertakes to use software produced by the CO only in accordance with the data protection provisions applicable to the CL in each case. The CL holds the CO harmless and indemnifies to claims of third parties.

If the CO has copyrights to the results of the performance or if the CL can be granted copyrights by the CO, the following applies: The CL shall be granted the non-exclusive right of use, unlimited in time, subject matter and location, to the service results of the CO after handover or – if agreed – after acceptance has taken place and full payment has been made. As a matter of principle, the CO retains all property rights and exclusive intangible property rights to all concepts and methods and is entitled to provide comparable services for other customers as well. This applies even in the event that the CL has the CO grant the exclusive rights of use to the results of the CO’s performance.

AGREEMENT ON CUSTOMER REFERENCE

The CO is permitted to name the CL as official customer reference. This also includes subject areas of individual projects – project contents are subject to the confidentiality agreement and may only be disclosed to third parties if the CL releases the CO from the confidentiality agreement in the specific case.

PLACE OF JURISDICATION

For all disputes arising from or in connection with the contracts concluded between the CL and the CO, Austrian law is agreed to the exclusion of conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods. The Commercial Court of Vienna is exclusively agreed as the competent court.

FINAL PROVISIONS

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

The CL may not derive any waiver of claims from an act or omission of/by the CO, unless the CO expressly declares such waiver in writing.

Important notifications shall be made in writing by e-mail and shall be addressed to the contact person named in the CO’s offer. Notifications by the CL, which are directed towards notices of defects, setting of a grace period due to delay, the amendment or termination of the contractual relationship concluded with the CO, are furthermore only legally effective if they are signed by the CL in accordance with the company’s name.