General Terms and Conditions
The general terms and conditions apply to all legal transactions conducted by third parties with has·to·be gmbh. The provision of services and delivery of products by has·to·be gmbh is based solely on the following provisions, unless other operating contracts establish a different course of action.
These general provisions apply to deliveries and services from “has.to.be gmbh” (contractor), unless otherwise agreed in the contract. Existing framework agreements are subject to these general provisions. The relevant legal provisions shall apply to any unregulated matters.
Deviating terms and conditions of the client apply only if and insofar as the contractor expressly acknowledges them in writing.
All offers from the contractor are subject to change, unless the offer expressly determines otherwise.
The client will not make the offer, made to him, as a whole or in parts, even in an edited version, available to third parties without the contractor’s prior written consent.
The client firmly commits with their word to the contractor’s offer for 6 weeks.
3 Contractual services
3.1 Scope of services
The contractor provides only the services as described in the contract. These terms and conditions were mentioned in the order form and form an integrated part of the order.
3.2 Contractor obligations
The contractor will perform the relevant services themselves or within their responsibility. The contractor will comply with customary safety standards when the services are provided. The contractor commits themself to the best possible use of resources to deliver the necessary success.
At the beginning of the work, the contractor will prepare a time and work plan in writing and agreed with the client, and continue with it where necessary. On the basis of this plan, the contractor will inform the client periodically about the status of the work upon request.
If the contractor recognises that the task is erroneous, unambiguous or unworkable, they will immediately communicate this to the client. As a result, the client and contractor decide by consensus on how to proceed.
It is made clear that it is the sole decision of the contractor whether and to what extent he assures the risk, in particular the liability risk, from his activities. Neither the contract nor the general provisions can be used to divert any obligation to insure.
3.3 Duty of cooperation of the client
The client supports the contractor to the required extent free of charge by providing, for example, the provision of employees, documents as well as by participating in the requirements analysis, tests, acceptance, etc.
In the event that work is carried out on their premises, the client undertakes to provide the contractor’s employees with sufficient working space and resources. These must comply with the provisions laid down by law, particularly in terms of size and equipment.
The client will grant the contractor unrestricted access to the IT components, spaces and information relevant to the performance of the contract.
The client will only use IT components and software solutions of which they are convinced to be free of defects and thus suitable for appropriate use.
In particular, the client must ensure that a qualified contact person is available should the contractor have questions for all matters relating to the implementation of, the organisation of, and the operation of the project.
The client undertakes to ensure that any employee employed by the client have the necessary expertise and experience to carry out the work in question. The contractor may require the client to remove their employees who may have insufficient qualifications. In this case, the client must immediately provide a replacement person.
The client takes reasonable precautions in the event that the IT components in their area of responsibility are, in whole or in part, not functioning properly, e.g. with data backups and sampling of the results.
The client must ensure that any faults in the components supplied by the contractor are reported in writing immediately after detection.
The client is obliged to procure, test and make operational the necessary infrastructure, software and legal rights in a timely manner at their own expense, if necessary, for the fulfilment of the contract and not otherwise agreed in the contract.
The client is responsible for the collection and content of the data to be processed.
Further obligations of cooperation of the client can be agreed within the contract.
If the client fails to fulfil their obligations to cooperate properly or on time, or if the client interrupts a project for reasons not attributable to the contractor, this may lead to postponements or additional expenses. The contractor will announce this in writing within a reasonable period of time and will indicate any impact. In such a case, the contractor will try to use their employees elsewhere. To the extent that this is not possible, the contractor is entitled to reimbursement of any incurred additional expenses of the participation due to the failure to cooperate and/or the interruption of the project, furthermore with any stand-still time also being charged as working hours.
4 Change of services
Should changes, extensions or detailing arise on the part of the client, which are reasonably regarded by the contractor as a change of scope, an impact on timelines and/or costs, the contractor will provide the client with an offer in this regard or set a change request.
The requests for change must be handed over in writing and in detail by the contractor at the request of the client. Upon acceptance by the client, the dates and/or costs that are to be amended will subsequently become part of the contract. Should a change or extension require amendment of a document which has already accepted by the client, the contractor will apply it with the permission of the client also in said documents.
Should the contractual parties not reach an agreement, the contractor will continue the work in accordance with the existing contract without the corresponding change.
5 Intellectual Property Rights
With full payment of the fee, the client receives the non-transferable and non-exclusive right to the results of the work (e.g. to use software, databases or other copyrighted works and related documentation) within the EU area, for the contractual purpose, for the contractually agreed duration. After the expiry of the right of use, all results of the work must be returned to the contractor upon request, or otherwise demonstrably deleted or destroyed.
Use may be limited to a system or a specific number of users to be determined within the contract. If the use is limited by the number of licenses purchased, it is used in the manner of an individual license, regardless of whether this process is carried out or can be carried simultaneously or delayed, directly or indirectly, immediately or collaterally.
All rights, in particular copyrights, to the results of the work are the entitlement of the contractor or their licensees. The client ensures that without the contractor’s prior written consent, the results of the work will not be passed on, even in an edited version, to any third party.
The client notes that the contractor cannot transfer more rights than they themself have. Consequently, all restrictions to which the contractor subjects its licensees to also apply in relation to the client.
The client may only use software and databases in machine-readable form. With the commissioning of a new version of the software, but no later than three months after the new version was made available by the contractor, the permission to use a copyrighted work expires on the previous version.
The client may not use software components in such a way that third parties can use said programs, unless the use by third parties is an intended feature of the software component.
The client is not entitled to reproduce printed or machine-readable parts of the software within the scope necessary for the fulfilment of the contract or to transfer them to another machine-readable or printed form. Additionally, the client is not entitled to reproduce parts of the software in printed or other non-machine-readable form (e.g. Microfiche).
The client is permitted to make copies for archival and data protection purposes on condition that the software does not contain an explicit prohibition of this for the licensee or third parties, and that all copyright and property notices in these copies can be transferred unaltered.
The client is only entitled to reconvert or decompile (if only partially) the software if they have explicitly requested such decompiling from the contractor in writing with a reasonable period of at least four weeks prior, and to provide the interface information as per § 40e UrhG against reimbursement of costs. Even after this period, the client is only permitted to decompile within the scope of § 40e Para. 1 UrhG.
The client is not entitled to carry out further developments, or to have them carried out by third parties, in the use of software components made available to them within the terms of the contract. The contractor, for their part, is entitled to further develop all the services they provide under this contract, in particular components, and to use them in any way.
In all documents and specifications from the contractor relevant to the fulfilment of the contract, the client acquires a non-exclusive right of use limited to the purposes of fulfilling the contract. The client is responsible for ensuring that the contractor is actually entitled to make these uses available for the purposes of fulfilling the contract. Upon request of the client, the contractor will, after complete fulfilment of the contract, return the documents to the client or will demonstrably delete them or destroy them.
By the client’s participation in the settlement of this contract, the client does not acquire any rights above and beyond the rights accorded as per the relevant contract. However, if joint development is expressly envisaged in a sub-area, both parties are entitled to jointly use the results of the work, whereby the contractor has entitlement to the copyright while the client has entitlement to the permission to use a copyrighted work.
6.1 Fees, Fee Adjustment
The fee to be paid by the client is based on the prices set in the offer.
Prices are adjusted once a year, subject to a 30-day notification period, based on changes in calculated costs (e.g. changes in foreign currencies, subcontractor pricing changes, hardware and software prices, collective contracts…).
Services will be charged according to actual effort and outlay. If it is foreseeable that these will exceed the expenses as stated in the offer by more than 15%, the contractor undertakes to inform the client immediately in writing and to establish agreement with the client on the further course of action.
6.3 Payment Terms and Late Payments
Prices in the contract are exclusive of V.A.T, which must be recorded separately.
The payment term of 14 week days net is agreed from the invoice date. In the event of late payment, the client owes the contractor default interest of 6.5% above the respective base interest rate of the Austrian National Bank, as well as the reimbursement of reminder expenses and the costs of out-of-court prosecution of claims.
Further details of the payment method are regulated in the contract.
6.4 Expenses and Charges
The costs of travel, day and overnight stay funds are charged to the client separately on a monthly basis. Travelling time is considered working time.
All tax liabilities arising from this contractual relationship or the associated activity of the contractor, with the exception of the contractor’s income taxes, shall be borne by the client. If the contractor becomes liable for such taxes, the client will indemnify and hold the contractor harmless in this respect.
6.5 Reminder expenses and collection costs
In the event of breach of contract by the client, in particular in the event of late payment, the client commits to the payment of the following fees to the contractor:
Attorney’s expenses, costs of a collection agency, legal costs as well as the contractor’s own debt collection expenses up to a net amount of 300 Euros plus interest.
At the time of conclusion of the contract, the client and the contractor nominate the respective contact persons for the professional coordination and communication between the contractual parties. These persons and their competencies and areas of responsibility are cited in the contract.
The contractual parties will endeavour to resolve all technical issues and discussions professionally at the operational level. If this is not possible, the matter will be escalated. The respective contact persons will endeavour to provide technical coordination and communication between the contracting parties and, if necessary, ensure that a possible contractual change is clarified expeditiously.
The commercial contact persons are authorised to make and receive declarations of intent from the contracting parties, which are cost and deadline effecting.
The contractor will endeavour to comply with the client’s timeline requests. In any case, periods in which the client is in default with the obligation to cooperate extend the duration and postpone any timelines that have been agreed. The same applies to requests for changes from the client.
The subject of acceptance is based on technically or functionally related, and declared as such, work packages (e.g. acceptance of functionality). All individual services from the contract are to be accepted in part and separately. There is no correlation of the services to be provided under the contract by the contractor with any services of the contractor on the basis of other contracts.
Timelines and deadlines relevant to acceptance are determined through mutual agreement by the contractor and client. After completion of the accepted services, the contractor’s responsible person shall confirm to the client’s responsible person or persons, the readiness for acceptance and agree with them a date for the acceptance. The services will be checked in cooperation with the client.
The results of the check must be recorded by the client in an acceptance protocol. Upon declaration of readiness for acceptance, the review of services by the client and the contractor should take place as soon as possible, starting no later than 15 working days after the contractor has declared readiness for acceptance. A postponement of this acceptance start is only possible by mutual consent in justified cases, and upon setting a new acceptance date. If the client fails to participate in acceptance within the specified time limits after receiving the readiness for acceptance confirmation, then the service is deemed to be accepted. Similarly, a service is considered to be accepted if it is used in/for a production plant of the client.
The conformity of the review results with the agreed requirements is noted as a positive note in the acceptance protocol, errors or problems as a negative note, whereby minor defects may not prevent a (partial) acceptance.
A defect is critical if the appropriate use of any part of the system is not possible or seriously restricted and the defect has a significant impact on the business and/or safety. All other shortcomings are immaterial.
The acceptance protocol (with the positive and negative notes) is sent signed by the client to the contractor’s responsible person. If the acceptance protocol is not received within 20 working days of the jointly agreed acceptance date, the service is deemed to have been accepted.
With regard to the acceptance of identified defects, the contractor will immediately begin troubleshooting and carry this out as quickly as possible. After the resolution of a defect, the procedure must be carried out again, starting with the declaration of readiness to accept, but only if it is a critical defect. Otherwise, the process of acceptance will be omitted.
With a positive notification of the entire acceptance unit, the acceptance is thus considered to have been approved. Partial acceptance in respect of a defined acceptance unit is excluded in principle, unless they are expressly agreed in writing by the responsible persons of the client and the contractor.
Ongoing services are deemed to have been accepted when the client pays the invoices.
8 Service interruptions and damages
8.1 Unexpected project problems
Should there arise particular problems during the fulfilment of the contract, which are caused by the client or the client’s third party, and which, due to the lack of prior information from the client, are unexpected for the contractor and hinder the contractor in the planned continuation of the project and thus jeopardize the project’s success, the contractor is entitled to cancel the project in exchange for remuneration of the services provided up to that date, or to demand a postponement of the completion date and compensation for the increased effort if the project continues.
8.2 Service delay
Circumstances outside the contractor’s sphere of influence that prevent them from providing the contractual services, in particular the breach of obligations to cooperate by the client or other third parties, extend for their duration the service deadline.
The contractor guarantees that the services according to the contract comply with the requirements and are not subject to defects that prevent or significantly reduce their use in accordance with the contract provisions.
In the case of operating services, the contractor provides their services as uninterrupted as possible. The contractor reserves the right to limit the accessibility of his services at short notice, e.g. in order to carry out maintenance work on the system. These interruptions are not considered as defects. However, the contractor undertakes to restore operational readiness as quickly as possible.
The contractor’s guarantee covers only defects if they were actually caused by the contractor.
The guarantee period is one year beginning with the successful (or partial) acceptance. In the case of operating and maintenance services, the contractor provides assurances in accordance with § 1096 ABGB in analogous application.
Defects must be notified in writing to the contractor’s commercial contact immediately after their discovery, stating the information appropriate for the rectification of the defect, otherwise any warranty obligation of the contractor will be waived. This obligation to notify also applies to any interruptions in operational readiness or data availability. The pre-requisite for any guarantee is that the defect is reproducible.
The contractor will rectify defects that occur during the warranty period upon request by the client within a reasonable period of time in accordance with § 932 of the ABGB.
For guarantee work at the client’s place of operation, the necessary auxiliary staff are to be provided on the part of the client, along with any required equipment, free of charge. Any parts exchanged as part of a repair or maintenance are transferred to the contractor’s property.
The contractor assumes no liability for defects, disturbances or damage caused by improper assembly, non-compliance with installation requirements, improper use, modified operating system components, interfaces or parameters, contamination with computer viruses, use of inappropriate organisational tools and data carriers, abnormal operating conditions (especially deviations from installation instructions), hardware or operating system defects and transport damage. The warranty expires if, without the written consent of the contractor, the client themself or a non-expressly authorised third party makes changes to the components.
The contractor may demand the remuneration of their expenses insofar as they have acted on the basis of a defect message from the client, without actually having a defect present.
The guarantee claims set out here are final.
The contractor is entitled to supply the client with a replacement item in place of improvement or price reduction. In this case, the client waives improvement or price reduction.
8.4 Freedom of third parties
If the client is claimed or threatened with infringement of copyright, trademark or patent rights of third parties due to the use of the contractor’s services, the client will immediately inform the contractor. The client will give the contractor the possibility to defend the claim or the full legal procurement.
The contractor is liable for damages to the extent that they are proven by the client as intent or gross negligence. The contractor’s liability for slight negligence is excluded.
Any liability for the destruction of data or software is excluded, provided that the client does not prove that they have made all the proper precautions for the correct operation of IT systems. This includes, for example, the creation of data protection documentation and the outsourcing of this annotated data backup in at least three generations. A failure to make a provision always excludes the claim for compensation, unless the client proves that this omitted provision would not have prevented or mitigated the damage if it had been taken.
The contractor assumes no liability for the results of analyses carried out by the client or third parties, which serve as the basis for their continued work.
The contractor assumes no liability for the content of data transmitted by the client. The contractor is not liable for any damage caused by temporary interruptions to the usability of their services (down-times).
To the extent permitted by law, the contractor’s liability for damages is limited under the basic value of the contract. The sum of the claims for damages of all claimants resulting from a single, time-related, rendered, definable and, in this respect, uniform performance is considered to be a single claim for damages. Liability for consequential damages, including the loss of profits and indirect damages, is excluded.
Any claim for damages by the client shall be statute-barred for twelve months, after the client’s knowledge of said damage.
The contractor is not liable for the occurrence of a force majeure event that makes the fulfilment of the contract impossible, delayed or otherwise difficult. If such an event occurs on the side of a contracting partner, this must be communicated to the other contracting party without delay. Force majeure is tantamount to industrial action and similar circumstances.
9 Contract duration of operating and maintenance contracts
Operating and maintenance contracts are concluded for an indefinite period of time, and may be terminated by either one of the contract parties, subject to a notice period of 6 months as of 30th June or 31st December in one year and must be communicated in writing. The agreement of a termination waiver is reserved.
Should the operating or maintenance contract be terminated by the client in a non-timely or adverse manner during a termination waiver, the current fee must be paid by the client until the normal termination date.
10 Early termination of contracts
10.1 The client is entitled to terminate the contract when:
There is violation of essential contractual provisions despite the setting of a reasonable grace period for the fulfilment of contracts.
10.2 The contractor is entitled to terminate the contract, in particular for:
(1) Late payment on the part of the client despite a written reminder by the contractor,
(2) Significant and persistent violation of the (cooperation) obligations of the client,
(3) The opening of liquidation or bankruptcy proceedings concerning the client’s assets or the rejection of an application for the opening of the compensatory/bankruptcy proceedings in the absence of sufficient assets.
11 Data handover
In the event of termination of the contract, the contractor will transfer the data processed or stored for the client in an agreed format to the client or to a third party designated by the client within a reasonable period of time, but at the latest within three months of written request from the client. The costs incurred for this will be charged to the client separately.
In addition, the client has the option to demand the disclosure of their data in writing at any time in exchange for reimbursement of costs.
The contractor can use subcontractors to fulfil their obligations, whereby the contractor always remains directly responsible to the client.
The contractor decides at their own discretion which employees or subcontractors they use or exchange.
These employees or subcontractors remain in the employment and/or contract relationship with the contractor at all times. The client is not entitled to give instructions to these persons.
However, the client is responsible for the safety of these persons, provided that they are working in the client’s workplaces.
The client undertakes not to entice, neither directly or indirectly, any employee employed by the contractor to provide the owed service without the contractor’s prior written permission. In the event of breach of contract, the client must pay the contractor a penalty independent of the contract, which is not subject to judicial law, which corresponds to the simple last annual gross income of this employee, and said penalty is due for payment immediately upon employment of this person by the client in any form whatsoever.
12.2 Information obligations
The contracting parties will continuously exchange important information concerning the subject matter of the contract. As soon as circumstances become apparent to the contractor or the client that might call into question the fulfilment of the contract, that party will immediately notify the other contractual party of these circumstances and any measures to be considered by them.
Both contractual parties undertake to keep confidential all knowledge of data gained in the context of the contractual relationship and other information that has been made available to them or has come to their attention.
The obligation to confidentiality does not apply to information and data that is publicly known, demonstrably attributable to state of the art, or which has become known without breach of this confidentiality obligation to a party prior to the conclusion of this agreement, was already legitimately known but was not communicated by the other party, which has become known to one party in the course of their activities via third parties after the conclusion of this agreement, unless it was in breach of a confidentiality obligation, or which must be disclosed on the basis of legal provisions or on the basis of sovereign decrees. However, the latter does not apply before this disclosure obligation has been made in writing by the other party.
The contractor will only use content and facts of the contract in reference lists, unless the client has objected in writing to the publication thereof in reference lists.
12.4 Data Protection, Service Agreement
The contractor undertakes to use data and processing results exclusively as part of the client’s contracts and to return these exclusively to the client or to transmit only after the client’s written confirmation. Similarly, the use of the data handed over for the contractor’s own purposes requires such a written confirmation. At the client’s request in writing and for a fee, the contractor transmits data evaluations (e.g. query statistics, evaluations of log files, etc.).
The contractor legally binding declares that they have obliged all persons entrusted with data processing to maintain data secrecy within the meaning of § 15 DSG 2000 before taking up the activity. In particular, the obligation to maintain confidentiality by the persons entrusted with data traffic remains intact even after the termination of their activities and the departure of the contractor.
The contractor legally binding declares that they have taken sufficient security measures within the meaning of § 14 DSG 2000 to prevent data from being used unlawfully or made accessible to unauthorised third parties.
The contractor, in agreement with the client, creates the technical and organisational conditions that the client can comply with the provisions of § 26 (right of information) and § 27 (right to rectification or deletion) DSG 2000 vis-à-vis the person concerned, within the legal time limits, and leaves all the necessary information with the client.
After the termination of the service, the contractor is obliged to hand over to the client all processing results and documentation containing data in exchange for remuneration (cost recovery principle), on whose behalf they continue to secure against unauthorised access to keep or destroy in accordance with the contract.
Even after complete fulfilment by the client and contractor, the provisions regarding secrecy and data protection remain in force indefinitely. The same applies in the event that the contract ends for other reasons.
The client remains the owner of all contractual services, unless otherwise agreed in the contract. Should a transfer of ownership be explicitly agreed upon, the contractor retains ownership of the delivered components until the fees have been paid in full.
The client is obliged to transfer the retention of title to any other contractual partner of them. The contractor does not lose ownership if the client unjustifiably sells the object of the contract to another third party.
In particular, in the event of the termination of the contract due to late payment by the client, the contractor has the right, in addition to the claim to surrender on the subject of the contract, to claim the full purchase price from the client.
12.6 Right of retention
Legitimate complaints do not entitle the client to retain the entire amount of the invoice, but only to a reasonable part of the invoice amount.
The contractor has a right to retain the documents handed over to them by the client until their accounts receivable have been fully settled.
The contractor is entitled to assign claims under this contract and law, in particular the purchase price claim, to third parties.
The client is subject to a prohibition of assignment.
12.8 Legal succession
Both parties undertake to transfer the rights and obligations to legal successors, whether through organisational changes, reorganisation measures or other measures, as a result of and in connection with this contract.
12.9 Conventional penalty
Should the client violate the provisions of this contract, in particular points 3.0, 6, 12.2, 12.3, 12.5, 12.7, 12.8, the client thus obliges to pay the contractor a contractual penalty equal to double the amount of the gross contract value. Damages beyond this are reserved. Judicial moderation law is excluded in relation to registered traders.
12.10 Exclusion of set-off
All claims under the contract are subject to an exclusion of set-off.
12.11 Statute of limitation
Claims under the contract can only be asserted by both contractual parties within three years, unless there exist no shorter defined limitation periods, in particular warranty periods and shorter legal provisions.
12.12 Rules of interpretation
Should individual provisions be invalid or become invalid, this shall not affect the rest of the contractual content. The contractual parties will work together to find a settlement that is as close as possible to the invalid provisions.
12.13 Joint and several liability
Multiple clients are liable to the contractor for an undivided hand.
12.14 Written form
Verbal side agreements to these general provisions and this contract do not exist. Changes and additions to these general provisions or the contract require written form and must be explicitly referred to as amendments to the general provisions or contract.
The irrefutable presumption applies that the written form can never be deviated from by verbal agreement. The written form requirement is also maintained by use of a fax.
12.15 Timeliness and form of notices
Important communications are made, insofar as no other single rules exist, in writing or by fax and must be addressed to a qualified contact person of the recipient.
Notifications are deemed to have been sent on time if the document was given to the post office before the expiry of the relevant time limit (date of the postmark).
12.16 Court of jurisdiction and applicable law
Exclusively Austrian law applies, with the exception of reference standards of the IPRG. The application of the United Nations Convention on International Purchase of Goods (UNCITRAL Purchase Rights Convention) is excluded. In case of dispute, the disputed value will be declared exclusively to the responsible Salzburg Court.
Should provisions of this contract be invalid, the remaining contract points shall remain unaffected. The parties undertake to agree on a provision as economically close to the invalid provision as possible, but which is, however, admissible.