General Terms and Conditions for the Sale and
Delivery of Organizational and Programming Services
and Permission to Use Software Products
2002 Edition
CSS computer-systems-support GmbH
Landstraßer Hauptstraße 167
A-1030 Vienna / Austria
1. Scope and Validity of Contract
All orders and agreements are only then legally binding, when
they have been signed by an authorized representative of the
seller and they obligate only to the extent set forth in the
order confirmation. The terms and conditions of the buyer are
invalid for the legal transaction which is the subject of this
contract, as well as for the entirety of our business
relations. All offers are subject to change without notice.
2. Performance and Inspection
2.1. The subject of an order can be:
· Development of an organizational plan
· Macro- and micro-analyses
· Creation of custom-designed programs
· Delivery of library (standard) programs
· Acquisition of rights to use software products
· Acquisition of exclusive rights to use and to exploit software
· products
· Support at system start-up / support during system changeover
· Telephone advisory service
· Program maintenance
· Creation of program carriers
· Other services
2.2. Individual organizational plans and programs shall be
elaborated in line with the type and scope of the
information, documents and accessory aids which have been
made available in toto by the buyer. Included are
customary test data as well as the opportunity to test to
the necessary extent, which the buyer shall make available
on a timely basis, during normal business hours, and at
his expense. If the buyer has already been working in real
time in an operating system that is being made available
for testing, the responsibility for securing the real data
lies with the buyer.
2.3. The basis for creating custom-designed programs shall be
the written performance specifications that either are
provided by the buyer or that the seller writes up, at
charge to the buyer, on the basis of documentation and
information provided to him by the buyer. This performance
catalogue is to be inspected by the buyer for correctness
and completeness and is to be initialed by him as a sign
of his assent. Requests for modifications which are made
thereafter can result in separate deadline and price
agreements.
2.4. For individually created software or program adaptations,
it is required that each program be accepted by the buyer
at the latest four weeks after delivery by the seller.
This acceptance will be confirmed in a record of the
transaction by the buyer (inspection for correctness and
completeness in line with the performance specifications
accepted by the seller on the basis of the test data made
available to him, as described in 2.2). Should the buyer
allow four weeks to pass without accepting the program,
the delivered software shall be deemed to have been
accepted as at the last day of the stated time period. If
the buyer uses the software in real-time operations, the
software is thereby deemed to have been accepted by the
buyer. Possible defects – deviations from the written
performance specifications – are to be reported to the
seller with sufficient supporting documentation. The
seller shall make efforts to correct the defects as
quickly as possible. If there are serious defects that
have been reported in writing, i.e., if real-time
operations have not commenced or cannot be continued, a
renewed acceptance of the work following correction of the
deficiency is required.
2.5. When library (standard) programs have been ordered, the
buyer confirms by virtue of the order his knowledge of the
scope of performance of the ordered program.
2.6. Should it prove in the course of the work to be
impossible, actually or legally, to complete the order in
line with the performance specifications, it is the
responsibility of the seller immediately to inform the
buyer thereof. If the buyer does not change the
performance specifications accordingly or create the
conditions to make completion of the order possible, the
seller can reject performance of the order. If the
impossibility of carrying out the order is due to an
omission on the part of the buyer or to a later change by
the buyer in the performance specifications, the seller is
entitled to withdraw from the order. The buyer is to
reimburse the seller’s costs and fees that have come due
for the work as well as any dismantling costs.
2.7. The shipment of program carriers, documentation, and
performance specifications shall be at the expense and
risk of the buyer. Should the buyer wish further training
and elucidation, these will be billed separately.
Insurance will be taken out only at the request of the
buyer.
3. Prices, Taxes and Fees
3.1. All prices are in Austrian schillings and do not include
sales tax. They are valid only for the present order. The
quoted prices are ex business domicile or branch office of
the seller. The costs of program carriers (e.g., magnetic
tapes, magnetic disks, floppy disks, streamer tapes,
magnetic tape cassettes, etc.) as well as any contract
fees shall be billed separately.
3.2. For library (standard) programs the valid prices are the
list prices in effect on the day of delivery. All other
services (organizational consultancy, programming,
training, support during changeover, telephone advisory
services) will be charged at the rates in effect on the
day the services are performed. Deviations from the amount
of time calculated as being required for the work (which
serves as the basis for the price calculation) and for
which the seller is not responsible, shall be charged
according to the actual time spent.
3.3. The costs for travel, per diem, and overnight
accommodation costs shall be invoiced separately to the
buyer according to the valid respective rates. Transit
time is to be considered as work time.
4. Delivery Dates
4.1. The seller is to endeavor to keep as closely as possible
to the agreed dates for completion of the order.
4.2. The targeted completion dates can only then be met if 1)
the buyer makes available to the seller in full, on the
dates established by the seller, all the necessary
preliminary work and documents, especially the performance
specifications accepted by him in accordance with §2, Item
3, and if 2) the buyer fulfills his obligation to
cooperate to the extent required. Delays in delivery and
cost increases that result from incorrect, incomplete, or
subsequently changed data and information or documentation
provided, are not the responsibility of the seller and
cannot result in the seller’s being in default of
delivery. Additional costs so arising are to be borne by
the buyer.
4.3. In the case of orders that encompass a number of units or
programs, the seller is entitled to make partial
deliveries and to submit partial invoices.
5. Payment
5.1. The invoices submitted by the seller, inclusive of 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 terms of payment for the entire
order obtain analogously.
5.2. Where orders encompass a number of units (e.g., computer
programs and/or training sessions, completion in stages),
the seller is entitled to submit an invoice after the
delivery of each unit or service.
5.3 Payment on the agreed-upon dates is an essential condition
for delivery and for fulfillment of the contract by the
seller. Failure on the part of the buyer to comply with
the agreed payment schedule entitles the seller 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.
5.4 The buyer is not entitled to withhold payment because of
incomplete total delivery, guarantee or warranty claims,
or complaints.
6. Copyright and Use
6.1. 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. Further 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.
6.2. 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.
6.3. 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.
7. Right of Cancellation
7.1. Should the agreed-on date of a delivery be exceeded due
solely to the fault or the unlawful conduct of the seller,
the buyer is entitled to cancel the contract in question
by registered letter if essential parts of the agreed
service are not performed within a reasonable grace period
and the buyer is in no way at fault.
7.2. Force majeure, work conflicts, natural catastrophes, and
transportation stoppages, as well as other circumstances
that cannot be influenced by the seller relieve the seller
of the obligation to deliver or permit him to redetermine
the agreed delivery period.
7.3 Cancellation by the buyer is only possible with the
written agreement of the seller. If the seller agrees to
the cancellation, he is entitled to charge not only for
services rendered and accrued costs, but also a
cancellation fee that represents 30% of the value of the
total order not yet settled.
8. Warranty, Maintenance, Alterations
8.1. Notices of defects are valid only if they concern defects
that are reproducible and if they are submitted within 4
weeks after delivery of the agreed service or, in the case
of custom-designed software, after acceptance of the
program in accordance with §2 Item 4, and documented in
writing. If the notice of defects is justified, the
defects are to be remedied within an appropriate period of
time, and the buyer is to make available to the seller all
measures required by him to investigate the problem and
remedy the defects.
8.2. Revisions and additions, which, before the agreed work is
handed over, prove to be necessary because of
organizational deficiencies or technical deficiencies in
the program, and for which the seller bears
responsibility, are to be carried out free of charge by
the seller.
8.3. The costs for support provided, diagnosis of errors,
remedying defects and failures that are the responsibility
of the buyer, as well as other corrections, revisions and
additions are to be carried out by the seller and the
costs charged to the buyer. This is also the case for the
remedying of errors when program revisions, additions or
other interventions have been carried out by the seller
himself or by a third party.
8.4. Furthermore, the seller assumes no warranty for defects,
failures or damages that are due to improper use, altered
components in the operating system, interfaces and
parameters, the use of inappropriate organizational
resources and data carriers, insofar as these are
stipulated, unusual operating conditions (particularly
deviations from the installation and storage provisions)
or damage during shipment.
8.5. For programs that are subsequently altered by programmers
of the buyer or by third parties, any existing warranty of
the seller’s is no longer applicable.
8.6. Insofar as the subject of the order is the revision or
supplementation of existing programs, the warranty covers
the revision or supplementation. The warranty for the
original program does not thereby again come into effect.
9. Liability
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.
10. Loyalty
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.
11. Protection of Data Privacy, Nondisclosure
The seller obligates his employees to observe the
provisions of §15 of the Data Privacy Law.
12. Other
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.
13. Concluding 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.