TERMS OF SERVICE

1. General

1.1. The contractor (AN) provides services in information technology and the operation of hardware and software components for the client (AG) in compliance with the attached Service Level Agreements (SLAs), which form an integral part. In the case of non-existent SLAs, the Contractor and the Client agree on an objection period of 5 days. This applies to any type of service billing.

1.2. These General Terms and Conditions (AB) apply to all current and future services that the AN provides to the AG, even if no express reference is made to the AB in individual cases when the contract is concluded. The AG’s terms and conditions only apply if they have been accepted in writing by the AN.

2. scope of services

2.1. The exact scope of the AN’s services is defined in the respective SLA with the AG. Unless otherwise agreed, the Contractor shall provide the services during the Contractor’s usual business hours according to the SLA.
The contractor will ensure the provision and availability of the services in accordance with the respective SLA.

2.2. The basis of the facilities and technology used by AN for the provision of services is the qualitative and quantitative performance requirements of the AG, as determined on the basis of the information provided by the AG. If new requirements of the client make it necessary to change the services or the technology used, the contractor will submit a corresponding offer at the request of the client.

2.3. The Contractor is entitled to change the facilities used to provide the services at its own discretion if no impairment of the services is to be expected.

2.4. Services provided by the Contractor that are used by the Client in excess of the agreed scope of services will be remunerated by the Client based on the actual personnel and material costs at the rates applicable at the Contractor. This includes, in particular, services outside the usual business hours at the AN, the analysis and elimination of faults and errors that have arisen through improper handling or operation by the AG or other circumstances for which the AN is not responsible. Likewise, training services are generally not included in the services and require a separate agreement.

2.5. If the AN arranges third-party services at the request of the AG, these contracts are concluded exclusively between the AG and the third party under the respective terms and conditions of the third party. The Contractor is only responsible for the services he has provided himself.

2.6. We expressly point out that a barrier-free design within the meaning of the Federal Act on Equal Opportunities for People with Disabilities (Federal Disability Equality Act – BGStG)” is not included in the offer unless this was requested separately/individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the service for its admissibility with regard to the Federal Disability Equality Act.

3. Cooperation and provision obligations of the client

3.1. The AG undertakes to support all measures that are necessary for the provision of the services by the AN. The AG also undertakes to take all measures that are necessary to fulfill the contract and that are not included in the scope of services of the AN.

3.2. If the services are provided on site at the AG, the AG shall provide the network components, connections, supply current incl. Peak voltage compensation, emergency power supplies, storage space for systems, workplaces and infrastructure to the required extent and quality (e.g. air conditioning) are available free of charge. In any case, the AG is responsible for compliance with the requirements for operating the hardware required by the respective manufacturer. Likewise, the Client is responsible for room and building security, including protection against water, fire and access by unauthorized persons. The client is responsible for special safety precautions (e.g. safety cells) on his premises. The AG is not entitled to issue instructions of any kind to the employees of the AN and will only address all requests regarding the provision of services to the contact person named by the AN.

3.3. On the agreed dates and at its own expense, the AG shall provide all information, data and documents required by the AN to carry out the order in the form required by the AN and, if requested, support the AN in problem analysis and troubleshooting, the coordination of processing orders and the reconciliation of services. Changes in the work processes at the AG, which can cause changes in the services to be provided by the AN for the AG, require prior agreement with the AN with regard to their technical and commercial effects.

3.4. Insofar as this is not expressly included in the Contractor’s scope of services, the Customer shall provide a network connection at its own risk and expense.

3.5. The client is obliged to treat the passwords and log-ins required by the contractor to use the services confidentially.

3.6. The AG will also store the data and information handed over to the AN so that they can be reconstructed at any time in the event of loss or damage.

3.7. The client will fulfill all of its obligations to cooperate in a timely manner so that the contractor is not prevented from providing the services. The AG ensures that the AN and/or the third parties commissioned by the AN are granted the necessary access to the premises at the AG for the provision of the services.
The AG is responsible for ensuring that the employees of its affiliated companies involved in the fulfillment of the contract or third parties commissioned by it cooperate accordingly in the fulfillment of the contract.

3.8. If the AG does not fulfill its obligations to cooperate by the agreed deadlines or to the intended extent, the services provided by the AN shall still be deemed to have been provided in accordance with the contract, despite possible restrictions.
Schedules for the services to be provided by AN are postponed to a reasonable extent. The AG will separately reimburse the AN for the additional expenses and/or costs incurred as a result at the rates applicable at the time of the AN.

3.9. The client ensures that his employees and third parties who are attributable to him treat the equipment and technologies used by the contractor and any assets made available to him with care; the AG is liable to the AN for any damage.

3.10. Unless otherwise agreed, supplies and cooperation by the customer are free of charge.

4. staff

4.1. If, according to the agreements made between the contractual partners, employees of the client are taken on by the contractor, a separate written agreement must be made about this.

5. change requests

5.1. Both contractual partners can request changes to the scope of services at any time (“Change Request”). However, a desired change must provide an accurate description of the same, the reasons for the change, the impact on scheduling and the costs in order to give the addressee of the change request the opportunity for an appropriate evaluation. A change request only becomes binding when both contractual partners have signed it with legal effect.

6. performance disruptions

6.1. The Contractor undertakes to provide the services in accordance with the contract. If the Contractor does not provide the services at the scheduled time or only inadequately, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to begin rectifying the defect immediately and to provide its services properly and free of defects within a reasonable period of time by Wahl repeats the affected services or carries out necessary rectification work.

6.2. If the defectiveness is based on provisions or cooperation by the AG or on a breach of the obligations of the AG according to point 3.9, any obligation to remedy the defect free of charge is excluded. In these cases, the services provided by the Contractor are still deemed to have been provided in accordance with the contract, despite possible restrictions. At the request of the client, the contractor will remedy the defect for a fee.

6.3. The AG will support the AN in eliminating the defects and provide all the necessary information. Any defects that have occurred must be reported to the Contractor immediately in writing or by e-mail. The Client shall bear the additional work involved in eliminating the error caused by a late notification.

6.4. The provisions of this point apply analogously to any deliveries of hardware or software products from the contractor to the client. The warranty period for such deliveries is 6 months from handover. § 924 ABGB “Assumption of defectiveness” is mutually excluded. For any third-party hardware or software products made available to the AG by the AN, the respective warranty conditions of the manufacturer of these products shall take precedence over the provisions of this point. The Contractor retains ownership of all hardware and software products supplied by him until full payment has been made.

7. penalty

7.1. The contractor is obliged to comply with the degrees of fulfillment or recovery times specified in the SLA according to priorities. If the Contractor exceeds the time limits specified in the SLA for the recovery, the Contractor must pay penalties for each hour of exceeding until the actual recovery (fulfillment) to the AG according to the SLA:

The above-mentioned penalties per year are limited to 20% of the total annual fee. The assertion of a further claim for damages, unless in the case of intent or gross negligence, is excluded.

Should overruns result in penalties, the Contractor must be informed immediately in writing.

8. liability

8.1. The contractor shall only be liable to the client for damage for which he can prove that he is at fault in the event of gross negligence. This also applies mutatis mutandis to damage that can be traced back to third parties called in by the contractor. In the event of culpable personal injury, the contractor is liable without limitation.

8.2. Liability for indirect damage – such as lost profits, costs associated with business interruption, loss of data or claims by third parties – is expressly excluded.

8.3. Claims for damages become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the person causing the damage.

8.4. If the contractor performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the customer.

8.5. If data backup is expressly agreed as a service, liability for the loss of data is not excluded, deviating from point 8.2, but is limited to a maximum of EUR 10% of the order amount per case of damage, but no more than EUR 15,000.00. Warranty claims and claims for damages of the AG that go beyond those mentioned in this contract – regardless of the legal basis – are excluded.

9. compensation

9.1. The remuneration and conditions to be paid by the client result from the contract. The statutory sales tax will be charged additionally.

9.2. Travel times of employees of the Contractor count as working time. Travel times are remunerated at the agreed hourly rate. The rates mentioned change according to the price escalation clause in point 9.5. In addition, the travel costs and any accommodation costs will be reimbursed by the AG according to the actual expenditure. Travel and incidental expenses will be reimbursed upon presentation of receipts (copies).

9.3. The contractor is entitled at any time to make the provision of services dependent on the payment of down payments or the provision of other securities by the customer in an appropriate amount.

9.4. Unless otherwise contractually agreed, one-time payments after the service has been rendered, ongoing payments quarterly in advance. The invoices submitted by the Contractor, including sales tax, are payable no later than 14 days after receipt of the invoice without any deductions and free of charges. The terms of payment specified for the entire order apply analogously to partial invoices. A payment is deemed to have been made on the day on which the Contractor can dispose of it. If the client is in default with his payments, the contractor is entitled to charge the statutory default interest and all costs necessary for collection. If the client’s delay exceeds 14 days, the contractor is entitled to discontinue all services. The Contractor is also entitled to make the payment for all services already rendered due immediately, regardless of any payment deadlines.

9.5. Current remuneration is based on the collective agreement salary of an employee of companies in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).

9.6. The AG is only permitted to set off with a counterclaim that has been recognized by the AN or has been legally established. The client is not entitled to a right of retention.

9.7. The AG bears all duties resulting from the contractual relationship, such as legal transaction fees or withholding taxes.

Should the AN be held liable for such charges, the AG will indemnify and hold the AN harmless.

10. Force majeure

10.1. Insofar as and as long as obligations resulting from force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, power failure, failure of means of transport, failure of telecommunications networks or data lines, changes in the law affecting the services after the conclusion of the contract or other unavailability of products cannot be fulfilled in a timely manner or properly, this does not constitute a breach of contract.

11. Rights to use software products and documents

11.1. Insofar as software products are provided to the customer by the contractor or the customer is enabled to use software products as part of the services, the customer has the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form .

11.2. When using software products in a network, a license is required for each concurrent user. When using software products on “stand-alone PCs”, a license is required for each PC.

11.3. For third-party software products made available to the AG by the AN, the respective license provisions of the manufacturer of these software products shall take precedence over the provisions of this point.

11.4. Unless a separate agreement is made, no further rights to software products are transferred to the AG.

The rights of the AG according to §§ 40(d), 40(e) UrhG are not affected by this.

11.5. All documents provided to the customer by the contractor, in particular the documentation for software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.

12. term of the contract

12.1. The contract comes into force when signed by both contracting parties and runs for an indefinite period. The contract can be terminated by either party by registered letter, subject to a notice period of 6 months, but no earlier than the end of the minimum term agreed in the contract.

12.2. Each contractual partner is entitled to terminate the contract prematurely and without notice for an important reason by registered letter. An important reason exists in particular if the other contracting party violates essential obligations under the contract despite a written warning and threat of termination or bankruptcy or other insolvency proceedings are filed against the other contracting party, opened or rejected due to lack of assets or the services of the other contracting party are hampered or prevented for a period of more than six months as a result of force majeure.

12.3. The contractor is also entitled to prematurely terminate the contract for important reasons if essential parameters of the service provision have changed and the contractor can no longer be expected to continue the services from an economic point of view for this reason.

12.4. Upon termination of the contract, the AG must immediately return to the AN all papers and documentation provided to him by the AN.

12.5. Upon request, the AN will support the AG at the end of the contract at the hourly rates applicable at the AN in returning the services to the AG or a third party named by the AG.

13. Privacy / Confidentiality

13.1. When handling personal data, the Contractor will observe the provisions of the Data Protection Act, the GDPR and the Telecommunications Act and take the technical and organizational measures required for data protection in the Contractor’s area of responsibility.

The contractor undertakes, in particular his employees, to comply with the provisions of Section 6 of the Data Protection Act.

13.2. The data protection declaration iSd Art 13 and 14 DSGVO and the contract processor agreement iSd Art 28 Para 3 DSGVO are attached to the order.

14. confidentiality

14.1. Each contracting party assures the other that it will treat all trade secrets brought to its knowledge by the other party in connection with this contract and its implementation as such and will not make them accessible to third parties unless they are generally known, or to the recipient beforehand without any obligation of confidentiality were known, or were communicated or made available to the recipient by a third party without an obligation of confidentiality, or were demonstrably independently developed by the recipient, or are to be disclosed due to a legally binding official or judicial decision.

14.2. The subcontractors associated with the contractor are not considered third parties insofar as they are subject to a confidentiality obligation corresponding to this point.

15. miscellaneous

15.1. In the contract, the contractual partners name knowledgeable and competent employees who can make or initiate the necessary decisions.

15.2. During the term of the contract and up to one year after the end of the contract, the client will not poach employees employed by the contractor to provide the services either itself or through third parties. For each case of infringement, the AG undertakes to pay the AN a contractual penalty in the amount of twelve times the gross monthly salary that the employee concerned last received from the AN, but at least the collective agreement salary of an employee of companies in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).

15.3. Changes and additions to the contract must be in writing. This also applies to the cancellation of this formal requirement.

15.4. Should one or more provisions of the contract be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision is to be replaced by a corresponding valid regulation that comes closest to the economic purpose of the invalid or unenforceable clause.

15.5. Any disposal of the rights or obligations arising from the contract requires the prior written consent of the other contractual partner. However, the contractor is entitled to transfer the contract to a company affiliated with the contractor under group law without the consent of the client.

15.6. Unless otherwise agreed, the legal provisions applicable between entrepreneurs apply exclusively according to Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the place of business of the contractor shall apply exclusively.

Austrian law applies to legal proceedings.