Terms and Conditions
1.1 The contractor (AN) provides services for the client (AG) in information technology and the operation of hardware and software components in compliance with the separately agreed service level agreements (SLAs).
1.2 These general conditions (AB) apply to all current and future services that the AN provides to the AG, even if in individual cases no explicit reference is made to the AB when the contract is concluded. Terms and conditions of the client only apply if they have been accepted by the contractor in writing.
2. Scope of services
2.1 The exact scope of the AN’s services is specified in the respective SLA with the AG. Unless otherwise agreed, the contractor provides 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 for the provision of services is the information provided by the AG. If new requirements of the AG require a change in the services or the technology used, the AN will submit a corresponding offer at the request of the AG.
2.3 The Contractor is entitled to change the facilities used to provide the services at its own discretion if the services are not expected to be impaired.
2.4 Services by the AN that are used by the AG beyond the agreed scope of services will be remunerated by the AG based on actual personnel and material expenses at the rates applicable at the AN. This includes, in particular, services outside of the normal business hours at the AN, the analysis and elimination of faults and errors that have arisen due to improper handling or operation by the AG or other circumstances for which the AN is not responsible. Training services are also generally not included in the services. Training services are to be paid for separately.
2.5 If the contractor mediates third-party services at the request of the AG, these contracts are concluded exclusively between the AG and the third party at the respective terms and conditions of the third party. The Contractor is only responsible for the services he provides.
3. The client’s obligation to cooperate and provide
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. If the client does not meet his obligation to cooperate and provide, the contractor is entitled to invoice the services rendered by him up to this point in time and must be paid by the client without deduction within 14 days. In any case, offsetting against these claims is not permitted. The Contractor is not obliged to still provide the remaining outstanding services, which would still have to be provided and which cannot be rendered due to the deficient cooperation and provision obligation of the AG.
3.2 The AG is responsible for special safety precautions on its premises. The AG is not entitled to issue instructions to the Contractor’s employees – of any kind – and will only submit all requests regarding the provision of services to the contact person named by the Contractor.
3.3 The AG undertakes to provide all the information, data and documents required by the Contractor to carry out the order in the form requested by the Contractor on the agreed dates and at his own expense and further undertakes to inform the Contractor of his request when analyzing the problem and Support troubleshooting, the coordination of processing orders and the coordination of services to the extent possible. 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. This applies to all, but in particular with regard to their technical and commercial effects.
3.4 Insofar as this is not expressly included in the scope of services provided by the contractor, the client will ensure a network connection at his own risk and expense.
3.5 The AG is obliged to treat the passwords and log-ins required for the use of the services by the contractor confidentially.
3.6 The client is obliged to keep the data and information given to the contractor with them so that they can be reconstructed at any time in the event of loss or damage. The Contractor therefore assumes no liability for data loss.
3.7 The AG will perform all its duties to cooperate in a timely manner so that the AN is not hindered in the provision of the services. The AG ensures that the AN and / or the third parties commissioned by the AN receive 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 duties to cooperate on the agreed dates or to the intended extent, the services rendered by the Contractor are still performed in accordance with the contract despite possible restrictions. Timetables for the services to be provided by AN are shifting to a reasonable extent. The AG will compensate the additional expenses and / or costs incurred by the AN separately at the rates applicable at the AN.
3.9 The AG commits itself and its employees, as well as the third parties attributable to it, to treat the facilities and technologies used by the Contractor, as well as the assets surrendered to it carefully; the AG is liable to the AN for any damage.
3.10 All contributions and contributions by the client are made free of charge. The AG is obliged, in the event that a special agreement should exist regarding this point, to send a corresponding confirmation letter to the contractor, in which any changes to this agreement will be confirmed in detail in writing. If the AG has not demonstrably sent such a letter to the AN, this amounts to a waiver of any claims it may have in this regard.
If, according to the agreements made between the contracting parties, employees of the AG are taken over by the contractor, a separate written agreement must be made.
5. Changes to the scope of services
Changes to the scope of services are possible at any time by mutual agreement. Written form is expressly agreed in this regard. Unless a written agreement is reached, this means that the contractual part, which invokes the changes in the scope of services, waives its claims. A desired change must not only be made in writing, but must also give a precise description of the change, the reasons for the change, the impact on the schedule and the costs. Furthermore, it is agreed that a binding change in the scope of services will only come about if it has been legally signed by both contracting parties.
6. Performance disorders
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 times or only inadequately, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to immediately start remedying the defect and to provide its services properly and without defects within a reasonable period of time by repeating the services concerned or carrying out any necessary remedial work.
6.2 If the defect is due to the provision or cooperation of the client or a violation of the client’s obligations in accordance with point 3.9, any free obligation to remedy the defect is excluded. In these cases, the services provided by the Contractor are still considered to be performed in accordance with the contract, despite possible restrictions. The contractor will undertake a remedy of the defect at the request of the client.
6.3 The AG will support the contractor in rectifying the defect and provide all the necessary information. The AG must immediately report any defects to the Contractor in writing or by e-mail. The AG bears the additional work involved in troubleshooting due to a late notification.
6.4 The provisions of this point apply mutatis mutandis to any deliveries of hardware or software products from the AN to the AG. The warranty period for such deliveries is 6 months. § 924 ABGB “presumption of deficiency” is excluded by mutual agreement. For any hardware or software products provided by the contractor to third parties, the respective warranty conditions of the manufacturer of these products apply above the provisions of this point. Until full payment has been made, AN reserves ownership of all hardware and software products it supplies.
7. Contractual penalty
The Contractor is obliged to comply with the levels of fulfillment or recovery times specified in the SLA according to priorities. If the contractor for the recovery exceeds the time limits specified in the SLA, the contractor has to pay penalties for each hour of exceedance until the actual recovery (fulfillment) according to the SLA: The above penalties per year are 20% of the amount Annual fee limited. The assertion of a further claim for damages, be it in the case of intent or gross negligence, is excluded. If the penalty is exceeded, the Contractor must be informed immediately in writing.
8.1 The Contractor is liable for damage caused by gross negligence and willful misconduct. The Contractor is under no circumstances liable for slight negligence.
8.2 If the data backup is expressly agreed as a service, liability for the loss of data deviating from point 8.1 is not excluded, but limited for the restoration of the data up to the amount of the order. Further warranty claims and claims for damages by the client – regardless of the legal basis – are excluded, unless liability is mandatory due to intent or gross negligence to be proven by the client.
9.1 The remuneration and conditions to be paid by the AG result from the SLA. The statutory sales tax will also be charged.
9.2 Travel times of employees of the contractor count as working hours. Travel times will be reimbursed at the agreed hourly rate. The rates mentioned change according to the price sliding clause in point 9.5. In addition, the travel expenses and any accommodation costs will be reimbursed by the client based on actual expenditure.
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 collateral by the Client to an appropriate amount.
9.4 Unless otherwise contractually agreed, one-off payments after the provision of services, current payments are offset annually in advance. The invoices submitted by the contractor, including sales tax, are payable at the latest 14 days from receipt of the invoice without any deductions and free of charges. For partial invoices, the payment terms specified for the entire order apply analogously. Payment is deemed to have been made on the day on which the Contractor can dispose of it. If the client is in arrears with his payments, the contractor is entitled to offset the statutory default interest and all costs necessary for collection. In the event of default by the client, the contractor is entitled to immediately cease all services. The Contractor is also entitled to immediately pay the fee for all services already provided regardless of any payment periods.
9.5 Offsetting is permitted to the AG only with a counterclaim recognized by the AN or legally established. The AG has no right of retention.
9.6 All tax obligations resulting from the contractual relationship, e.g. Legal transaction fees or withholding taxes are borne by the AG. If the AN is used for such charges, the AG will indemnify and hold the AN harmless.
10. Force Majeure
To the extent and as long as obligations due to force majeure, such as War, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign interventions, power supply 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 are not on time or not properly can be fulfilled, this does not constitute a breach of contract.
11. Rights of use to software products and documents
11.1 Insofar as the AG provides software products to the AG or the AG enables the use of software products as part of the services, the AG is entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unchanged 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 provided by the client, the respective license terms of the manufacturer of these software products apply above 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 by the Contractor to the Client, in particular the documentation on software products, may not be reproduced or distributed in any way against payment or free of charge.
12. Term of the contract
12.1 The contract comes into force with the signature of both contracting parties. The contract duration is 24 months and the contractual relationship is extended by a further 12 months, unless it is terminated by giving 3 months’ notice, but at the earliest at the end of the minimum term agreed in the SLA, at the end of each calendar year by registered letter.
12.2 Each contractual partner is entitled to terminate the contract early and without notice for good cause by registered letter. An important reason exists in particular if the other contractual partner violates essential obligations from the contract despite a written warning and threat of termination or if bankruptcy or other insolvency proceedings are filed against the other contractual partner, opened or rejected due to lack of assets or the other contractual partner’s services are prevented or prevented for longer than six months as a result of force majeure.
12.3 The Contractor is also entitled to terminate the contract prematurely for an important reason if essential parameters of the service provision have changed and the Contractor can no longer be reasonably expected to continue performing the services from an economic point of view.
12.4 Upon termination of the contract, the AG must immediately return all documents and documentation provided by the AN to the AN.
13. Data protection
13.1 When handling personal data, the Contractor will observe the provisions of the Data Protection Act and the Telecommunications Act and take the technical and organizational measures required for data protection in the area of responsibility of the Contractor. The AN particularly undertakes its employees to comply with the provisions of the Data Protection Act.
13.2 The AN is not obliged to check the admissibility of the data processing commissioned by the AG in terms of data protection regulations. The client must ensure the permissibility of the transfer of personal data to the contractor and the processing of such data by the contractor.
13.3 The Contractor takes all reasonable measures to protect the data and information of the Contractor stored at the Contractor’s locations against unauthorized access by third parties. However, the Contractor is not responsible if third parties nevertheless manage to gain unlawful access to the data and information.
13.4 With the conclusion of the contract, the AG gives its consent that the data from this business case may also be transmitted to subcontractors who are involved in the processing of this order.
14.1 Each contractual partner assures the other that it will treat all trade secrets brought to its attention by the other 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 to maintain confidentiality were known, or were communicated to the recipient by a third party without any obligation to maintain confidentiality, or were demonstrably developed independently by the recipient, or are to be disclosed on the basis of a legally binding official or judicial decision.
14.2 The subcontractors associated with the AN are not considered to be third parties insofar as they are subject to a confidentiality obligation corresponding to this point.
15.1 The contractual partners are obliged to name knowledgeable and competent employees who can make or make the necessary decisions.
15.2 During the term of the contract and until the end of one year after the end of the contract, the AG will not entice employees employed by the AN to provide the services itself or through third parties. The AG undertakes to pay a contractual penalty in the amount of twelve times the gross monthly salary that the employee concerned received from the Contractor for each case of non-compliance with the Contractor, but at least the collective contract salary of an employee of companies in the area 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 made in writing. This also applies to the lifting of this formal requirement.
15.4 Should one or more provisions of the contract be or become wholly or partially ineffective or not feasible, the validity of the remaining provisions will not be affected. The ineffective or unenforceable provision is to be replaced by an analogous valid regulation that comes as close as possible to the economic purpose of the ineffective or unenforceable clause.
15.5 Any disposal of the rights or obligations based on the contract requires the prior written consent of the other contractual partner.
15.6 The Contractor is entitled to use third parties in whole or in part to fulfill its obligations.
15.7 Unless otherwise agreed, the statutory provisions applicable between full merchants apply exclusively under 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 contractor’s place of business shall apply.
16. Information on online dispute resolution
16.1 The EU Commission provides a platform for online dispute resolution on the Internet at the following link: http://ec.europa.eu/consumers/odr This platform serves as a point of contact for out-of-court settlement of disputes arising from online sales or service contracts, in which a consumer is involved. We are neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board.
Last Updated: 14 April 2020