GTC
General Terms and Conditions
Wadl & Prtnr.
Markus M. Wadl
Villacher Straße 47
9020 Klagenfurt am Wörthersee
Austria
Phone: +43 (0)650 660 5678
E-Mail: office@wadl.digital
Owner and Managing Director: Markus M. Wadl
Sales tax identification number (UID): ATU 75163859
Chamber: Carinthian Chamber of Commerce
Commercial Register Court: Commercial Court Klagenfurt am Wörthersee
Regulations for practicing the profession: GewO 1994
Information technology services
Software development
Duty to inform according to ECG and media law
1. validity, conclusion of contract
1.1 The contractor Wadl & Prtnr. (Plattform.Digital) Markus Wadl (hereinafter referred to as “Contractor”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the contractor and the client, even if no express reference is made to them.
1.2 The version valid at the time of conclusion of the contract shall be authoritative. Deviations from these and other supplementary agreements with the Client shall only be effective if they are confirmed in writing by the Contractor.
1.3 Any terms and conditions of the Client shall not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. The Contractor expressly objects to any general terms and conditions of the Client. No further objection to the client’s general terms and conditions by the contractor is required.
1.4 Amendments to the GTC shall be notified to the client and shall be deemed agreed if the client does not object to the amended GTC in writing within 14 days; the client shall be expressly informed of the significance of silence in the notification.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.
1.6 The Contractor’s offers are subject to change and non-binding.
2. social media channels
Before placing the order, the Contractor expressly points out to the Client that the providers of “social media channels” (e.g. facebook, hereinafter referred to as “Provider”) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore an incalculable risk on the part of the contractor that advertisements and appearances may be removed for no reason. In the event of a complaint from another user, the providers are granted the option of a counterstatement, but even in this case the content will be removed immediately. In this case, it may take some time to restore the original, lawful status. The contractor works on the basis of these terms and conditions of use of the providers, over which it has no influence, and also bases an order from the client on these. By placing an order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The Contractor intends to carry out the Client’s order to the best of its knowledge and belief and to comply with the guidelines of “Social Media Channels”. However, due to the currently valid terms of use and the simple possibility for any user to claim legal violations and thus achieve removal of the content, the contractor cannot guarantee that the commissioned campaign will be available at all times.
3. protection of concepts and ideas
If the potential client has already invited the contractor to prepare a concept in advance and the contractor complies with this invitation before the conclusion of the main contract, the following provision shall apply:
3.1 The potential client and the contractor enter into a contractual relationship (“pitching contract”) as soon as the invitation is issued and accepted by the contractor. This contract is also based on the GTC.
3.2 The potential Client acknowledges that the Contractor already provides cost-intensive preliminary services with the concept development, although it has not yet assumed any performance obligations itself.
3.3 The concept is protected by copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential client is not permitted to use or edit these parts without the contractor’s consent, if only on the basis of copyright law.
3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is produced later and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from commercially exploiting the creative advertising ideas presented by the contractor as part of the concept or having them exploited or using them or having them used outside the corrective of a main contract to be concluded at a later date.
3.6 If the potential client is of the opinion that ideas were presented to him by the contractor which he had already thought of before the presentation, he must inform the contractor of this by e-mail within 14 days of the day of the presentation, citing evidence that allows a time allocation.
3.7 In the opposite case, the contracting parties shall assume that the Contractor has presented the potential Client with an idea that is new to it. If the idea is used by the client, it shall be assumed that the contractor has made a profit.
3.8 The potential client may release itself from its obligations under this point by paying appropriate compensation plus 20% VAT. The exemption shall only take effect after full payment of the compensation has been received by the Contractor.
4. scope of services, order processing and obligations to cooperate
4.1 The scope of the services to be provided is set out in the service description in the contractor contract or any order confirmation by the contractor, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation by the Contractor. Within the framework specified by the Client, the Contractor shall have freedom of design in the fulfillment of the order.
4.2 All services provided to the Contractor (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be checked by the Client and released by the Client within three working days of receipt by the Client. If they are not approved in good time, they shall be deemed to have been approved by the client.
4.3 The Client shall provide the Contractor with timely and complete access to all information and documents required for the provision of the service. He shall inform them of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. The Client shall bear the costs incurred if work has to be repeated or delayed by the Contractor as a result of incorrect, incomplete or subsequently changed information provided by the Client.
4.4 Furthermore, the Client is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, labeling rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The Contractor shall not be liable in the event of merely slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the Client – due to an infringement of such third-party rights by the documents provided. If a claim is made against the Contractor by a third party due to such an infringement of rights, the Client shall indemnify and hold the Contractor harmless; the Client shall compensate the Contractor for all disadvantages incurred by the Contractor as a result of a claim by a third party, in particular the costs of appropriate legal representation. The Client undertakes to support the Contractor in the defense against any third-party claims. The Client shall provide the Contractor with all documents for this purpose without being requested to do so.
4.5 The Contractor assumes no responsibility for networks or network and other telecommunications services not operated, created or maintained by it up to an interface defined in the order, which are physically or logically upstream of the services in question here.
5.5 The Contractor is not obliged to check the content or logical content of data of the Client or third parties that the Client provides to it for processing, storage or transportation. If the Contractor suffers damage or additional expense due to the fact that the data provided to it by the Client contains unlawful content or is not in a condition that makes it suitable for the provision of the commissioned service, the Client shall be liable.
5. external services / commissioning of third parties
5.1 The Contractor shall be entitled, at its own discretion, to perform the service itself, to make use of expert third parties as vicarious agents in the provision of contractual services and/or to substitute such services (“external service”).
5.2 The commissioning of third parties as part of an external service shall be carried out either in the Contractor’s own name or in the name of the Client. The Contractor shall select this third party carefully and ensure that it has the necessary professional qualifications.
5.3 Insofar as the Contractor commissions necessary or agreed external services, the respective contractors are not vicarious agents of the Contractor.
5.4 The Client shall enter into obligations towards third parties that extend beyond the term of the contract. This shall also expressly apply in the event of termination of the contractor agreement for good cause.
6. deadlines, terms of delivery of software
6.1 Unless expressly agreed as binding, stated delivery or performance deadlines are only approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the Contractor.
6.2 If the Contractor’s delivery/service is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last for more than two months, the Client and the Contractor shall be entitled to withdraw from the contract.
6.3 If the Contractor is in default, the Client may only withdraw from the contract after it has set the Contractor a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the Client due to non-performance or delay are excluded, except in cases of intent or gross negligence.
6.4 If the Client orders licensed software from third parties from the Contractor, it is the Client’s obligation to have knowledge of the scope of performance of this software and its license terms. The Contractor shall provide software from third parties only within the scope specified by the license conditions of this third party; these shall be made available on request – if necessary only in the original language. When using the software of a third party, the client does not become the client of this third party. If no express agreement is made on the delivery of such software, the Contractor shall only make such software available as part of its service offering, without the Client being legally entitled to it.
6.5 In the case of software created by the Contractor, the scope of services shall be determined by a service description (system analysis) countersigned by the Client. The delivery shall include the program code executable on the designated systems. All rights to the programs and the documentation shall remain with the Contractor.
6.6 Under no circumstances shall the Contractor be permitted to pass on software to third parties, even for a short period.
6.7 The Contractor shall exercise the greatest possible care when setting up and/or checking firewalls and in accordance with the current state of the art. However, the Contractor expressly points out that absolute security (100%) of firewall systems cannot be guaranteed. Liability on the part of the Contractor under the title of warranty or compensation for damages for any disadvantages arising from the fact that the firewall system installed at the Client’s premises is bypassed or rendered inoperable is therefore excluded.
6.8 The Contractor further points out that no liability is assumed for application errors in the Client’s area. The same applies to unauthorized changes to the software or configuration without the consent of the Contractor.
7. early termination
7.1 The Contractor shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
a) the performance of the service becomes impossible for reasons for which the client is responsible or is further delayed despite the setting of a grace period of 14 days;
b) the client continues to breach material obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are justified concerns regarding the Client’s creditworthiness and the Client neither makes advance payments to the Contractor upon request nor provides the Contractor with suitable security prior to performance;
7.2 The Client is entitled to terminate the contract for good cause without setting a grace period. Good cause shall be deemed to exist in particular if the Contractor continues to violate material provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
7.3 Notwithstanding the Contractor’s claims for damages, services or partial services already rendered shall be invoiced and paid for in accordance with the contract in the event of withdrawal. This shall also apply if the delivery or service has not yet been accepted by the Client, as well as for preparatory work performed by the Contractor. Instead, the Contractor shall also have the right to demand the return of items already delivered.
7.4 If the Client withdraws from the contract for reasons for which the Contractor is not responsible, compensation shall be deemed agreed in the amount of the demonstrable expenses incurred by the Contractor, but at least 20% of the net order value. The judicial right of moderation is excluded. In the event of justified extraordinary termination by the Contractor, the Contractor shall be entitled to compensation to this extent for any expenses incurred by the Contractor with regard to the establishment and fulfillment of this contract (e.g. through the purchase of equipment) and which have not yet been compensated by the fees paid by the Client during the term of the contract.
8. fee
8.1 Unless otherwise agreed, the Contractor shall be entitled to a fee for each individual service as soon as it has been rendered. The Contractor shall be entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 3,000, or those that extend over a longer period of time, the Contractor shall be entitled to issue interim invoices or advance invoices or to request payments on account.
8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Contractor shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law at the usual market rate.
8.3 All services rendered by the Contractor that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Contractor shall be reimbursed by the Client.
8.4 The Contractor’s cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the Contractor’s written estimate by more than 15%, the Contractor shall inform the Client of the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three working days of this notification and at the same time announces more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the client from the outset.
8.5 The Contractor shall be entitled to the agreed remuneration for all work of the Contractor that is not carried out by the Client for whatever reason. The offsetting provision of § 1168 ABGB is excluded. Upon payment of the fee, the Client shall not acquire any rights of use to work already performed; concepts, drafts and other documents not executed shall be returned to the Contractor without delay.
8.6 Travel times of the Contractor’s employees shall be considered working time. Travel time shall be remunerated at the agreed hourly rate. In addition, travel expenses and any accommodation costs shall be reimbursed by the Client according to actual expenditure. Travel and incidental expenses shall be reimbursed upon presentation of receipts (copies).
8.7 The Contractor shall be entitled at any time to make the provision of services dependent on the provision of advance payments or the provision of other securities by the Client in an appropriate amount.
8.8 Unless otherwise contractually agreed, one-off payments shall be invoiced after the service has been provided and ongoing payments shall be invoiced quarterly in advance. Invoices issued by the Contractor, including VAT, shall be payable within 14 days of receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment stipulated for the entire order shall apply analogously. A payment shall be deemed to have been made on the day on which the Contractor can dispose of it. If the Client is in default of payment, the Contractor shall be entitled to charge the statutory default interest and all costs necessary for collection. If the Client’s default exceeds 14 days, the Contractor shall be entitled to suspend all services. Furthermore, the Contractor shall be entitled to demand immediate payment for all services already rendered, irrespective of any payment deadlines.
8.9 All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Client. Should the Contractor be held liable for such charges, the Client shall indemnify and hold the Contractor harmless.
9. payment, retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This shall also apply to the charging of all cash outlays and other expenses. The goods delivered by the Contractor shall remain the property of the Contractor until full payment of the fee, including all ancillary liabilities.
9.2 If the Client is in default of payment, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default of payment, the Client undertakes to reimburse the Contractor for the dunning and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this includes the costs of two reminders in the usual market amount of currently at least € 20.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of default in payment by the Client, the Contractor may demand immediate payment of all services and partial services provided under other contracts concluded with the Client.
9.4 Furthermore, the Contractor shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration shall remain unaffected.
9.5 If payment in installments has been agreed, the Contractor reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of deadline).
9.6 The Client is not entitled to offset its own claims against claims against the Contractor unless the Client’s claim has been recognized in writing by the Contractor or has been established by a court.
9.7 Unless otherwise agreed in the order, the prices stated in the quotation or order form shall apply. The prices are based on the costs at the time of the initial price quotation. Should wage and material costs or charges payable by the Contractor increase up to the time of delivery, the Contractor shall be entitled to adjust the prices accordingly and to charge them to the Client from the beginning of the month following the increase. The increases shall be deemed to have been accepted by the Client from the outset if they do not amount to more than 10% per annum. The prices quoted are ex works or ex warehouse of the Contractor.
9.8 The costs of program carriers as well as documentation and any contract fees shall be invoiced separately.
9.9 For services that can be provided at the Contractor’s business premises but are provided at the Client’s premises at the Client’s request by way of exception, the Client shall bear the costs of travel, accommodation and travel time for the Contractor’s persons commissioned to perform the service.
9.10 All fees and taxes (in particular VAT) shall be calculated on the basis of the applicable legal situation. If the tax authorities subsequently impose additional taxes or duties, these shall be borne by the client.
10. property rights and copyright
10.1 All services of the Contractor, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Contractor, as shall the individual workpieces and design originals, and may be reclaimed by the Contractor at any time – in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. Unless otherwise agreed, however, the Client may only use the services provided to the Contractor in Austria. The acquisition of rights of use and exploitation of the Contractor’s services shall in any case require full payment of the fees invoiced by the Contractor. If the Client uses the Contractor’s services before this point in time, this use is based on a loan relationship that can be revoked at any time.
10.2 Changes to or processing of the Contractor’s services, in particular their further development by the Client or by third parties working for the Client, are only permitted with the express consent of the Contractor and – insofar as the services are protected by copyright – of the author.
10.3 The Contractor’s consent is required for the use of the Contractor’s services that goes beyond the originally agreed purpose and scope of use, irrespective of whether this service is protected by copyright. The Contractor and the author shall be entitled to separate appropriate remuneration for this.
10.4 The Contractor’s consent is also required for the use of the Contractor’s services or advertising materials for which the Contractor has developed conceptual or design templates after expiry of the Contractor Agreement, irrespective of whether this service is protected by copyright or not.
10.5 In the first year after the end of the contract, the Contractor shall be entitled to the full remuneration agreed in the expired contract for use in accordance with paragraph 4. In the 2nd or 3rd year after expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no further contractor remuneration is payable.
10.6 The Client shall be liable to the Contractor for any unlawful use in double the amount of the reasonable fee for such use.
11. labeling
11.1 The Contractor shall be entitled to refer to the Contractor and, if applicable, to the author on all advertising material and in all advertising measures, without the Client being entitled to any remuneration for this.
11.2 Subject to written revocation by the Client, which is possible at any time, the Contractor shall be entitled to refer to the existing or former business relationship with the Client on its own advertising media and in particular on its Internet website by name and company logo (reference).
12 Warranty, availability and response time
12.1 The Client must report any defects immediately, in any case within eight days of delivery/service by the Contractor, and hidden defects within eight days of their discovery, in writing, describing the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to challenge errors due to defects shall be excluded.
12.2 In the event of justified and timely notification of defects, the Client shall be entitled to improvement or replacement of the delivery/service by the Contractor. The Contractor shall rectify the defects within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to investigate and rectify the defects. The Contractor is entitled to refuse to improve the service if this is impossible or involves a disproportionately high expense for the Contractor. In this case, the Client shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, the Client shall be responsible for transferring the defective (physical) item at its own expense.
12.3 The Client shall also be responsible for checking the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. The Contractor shall only be obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfilling any duty to warn the client, the contractor shall not be liable for the legal admissibility of content if this was specified or approved by the client.
12.4 In the event that a warranty is required, the warranty period shall be 3 months. Rectification shall in any case take precedence over price reduction or rescission. The reversal of the burden of proof, i.e. the obligation of the contractor to prove his innocence, is excluded.
12.5 The contracting parties agree that it is not possible to develop software in such a way that it is error-free for all application conditions. The Contractor shall provide agreed services for hardware and software provided by the Client (e.g. installations, functional enhancements, etc.) to the extent that is possible under the technical conditions provided by the Client. The Contractor does not guarantee that all functional requirements of the Client can be produced from the components provided.
12.6 The Contractor does not guarantee that all software errors can be rectified. It shall provide a warranty for warranted characteristics and, in the event of significant deviations from the service description, shall be entitled and obliged to rectify such deviations, provided this does not involve unreasonable expense. If the Contractor does not succeed within a reasonable period of time in rectifying the significant deviations from the service description or in circumventing them in such a way that the Client is able to use the software in accordance with the contract, the Client may proceed in accordance with the generally applicable warranty rules.
12.7 For software classified as “public domain”, “freeware” or “shareware”, the Contractor assumes no warranty whatsoever.
12.8 The Contractor assumes no warranty that the delivered software
12.8.1 complies with all requirements of the client, unless this was expressly made part of the contract;
12.8.2 cooperates with other programs of the client and
12.8.3 works at all times and without errors.
12.9 In the case of the provision of Internet services by the Contractor, the Contractor shall not assume any guarantee for the transmission of data, in particular not for its complete, correct and timely transmission, due to the known incomplete reliability of the Internet.
12.10 The Contractor shall provide its services with the greatest possible care, reliability and availability. However, it cannot guarantee that its services will be accessible without interruption, that the desired connections can always be established or that stored data will be preserved under all circumstances.
12.11 However, if services are not available for a period of more than 24 hours, the duration of the service provision shall be extended by this period exceeding 24 hours in the case of advance payment or (in the case of other forms of invoicing) no fee shall be charged for this period.
12.12 The Contractor undertakes to respond to error messages from the Client within six hours during the Contractor’s business hours.
13 Liability and product liability
13.1 In cases of slight negligence, liability of the Contractor and its employees or other vicarious agents (“people”) for property damage or financial loss of the Client is excluded, regardless of whether it concerns direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. In particular, any claims in the event of failure of the Contractor’s server are excluded, unless this failure is due to gross negligence on the part of the Contractor. The existence of gross negligence must be proven by the injured party. Insofar as the Contractor’s liability is excluded or limited, this shall also apply to the personal liability of its “people”.
13.2 Any liability of the Contractor for claims made against the Client on the basis of the service provided by the Contractor (e.g. advertising measure) is expressly excluded if the Contractor has complied with its duty to notify or if such a duty was not recognizable to it, whereby slight negligence shall not be detrimental. In particular, the Contractor shall not be liable for legal costs, the Client’s own legal fees or the costs of the publication of judgments or for any claims for damages or other third-party claims; the Client shall indemnify and hold the Contractor harmless in this respect.
13.3 The Client’s claims for damages shall expire six months after knowledge of the damage, but in any case three years after the Contractor has committed the infringement. Claims for damages shall be limited to the net order value.
14 Benefits not covered by this contract
14.1 Unless expressly agreed otherwise, the following services are not covered by the agreed fee; they shall be borne by the client:
14.1.1 The costs of travel, accommodation and travel time for the Contractor’s persons commissioned to perform the service.
14.1.2 Services caused by changes to the operating system, hardware and/or changes to non-contractual, mutually program-dependent software programs and interfaces.
14.1.3 Individual program adaptations or reprogramming.
14.1.4 Program changes due to changes in legal regulations if they require a change in the program logic.
14.1.5 The elimination of errors caused by the client or third parties.
14.1.6 Data conversions. Restoration of databases and interface adjustments.
14.2 In the event of unauthorized use of services, the Contractor shall be entitled to invoice the Client for the costs incurred at the applicable cost rates.
14.3 The Contractor shall be released from all obligations arising from this contract if program changes are made to the contractual software by employees of the Client or third parties without the prior consent of the Contractor, or if the software is not used as intended.
15. data protection (visual emphasis according to the case law)
15.1 The client agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the client, telephone number, fax number, e-mail address, bank details, credit card details, VAT number) for the purpose of fulfilling the contract and supporting the client as well as for his own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or previous business relationship with the client (reference). The client agrees that electronic mail may be sent to him for advertising purposes until further notice.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details listed at the top of the GTC.
15.2 The Client undertakes to safeguard all rights of the Contractor or Licensor relating to the software (such as industrial property rights, copyright including the right to copyright notice) and to safeguard the Contractor’s or Licensor’s claims to confidentiality of trade and business secrets, including by its employees and vicarious agents or third parties. This shall also apply if the software has been modified or combined with other programs. This obligation shall remain in force even after termination of the contract.
15.3 In the same way, the Contractor undertakes to safeguard all trade and business secrets of the Client that become known to it in the course of the execution of the order.
16. cooperation and provision obligations of the client
16.1 The Client undertakes to support all measures that are necessary for the provision of the services by the Contractor. Furthermore, the Client undertakes to take all measures that are necessary for the fulfillment of the contract and that are not included in the Contractor’s scope of services.
16.2 If the services are provided on site at the Client’s premises, the Client shall provide the network components, connections, supply current including peak voltage equalization, emergency power supplies, storage space for systems, workstations and infrastructure in the required scope and quality (e.g. air conditioning) required for the provision of the services by the Contractor free of charge. In any case, the client shall be responsible for compliance with the conditions required by the respective manufacturer for the operation of the hardware. The client shall also be responsible for room and building security, including protection against water, fire and access by unauthorized persons. The client is responsible for special security precautions (e.g. security cells) on its own premises. The Client shall not be entitled to issue instructions of any kind to the Contractor’s employees and shall submit all requests regarding the provision of services exclusively to the contact person designated by the Contractor.
16.3 The Client shall provide all information, data and documents required by the Contractor for the execution of the order in the form requested by the Contractor on the agreed dates and at its own expense and shall support the Contractor on request in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the Client’s work processes that may cause changes in the services to be provided by the Contractor for the Client shall require prior coordination with the Contractor with regard to their technical and commercial effects.
16.4 Insofar as this is not expressly included in the Contractor’s scope of services, the Client shall provide a network connection at its own risk and expense.
16.5 The Client is obliged to treat the passwords and log-ins required to use the Contractor’s services as confidential.
16.6 The Client shall also store the data and information provided to the Contractor so that it can be reconstructed at any time in the event of loss or damage.
16.7 The Client shall fulfill all its obligations to cooperate in a timely manner so that the Contractor is not hindered in the provision of the Services. The Client shall ensure that the Contractor and/or the third parties commissioned by the Contractor have the necessary access to the Client’s premises for the provision of the services. The Client shall be responsible for ensuring that the employees of its affiliated companies involved in the performance of the contract or third parties commissioned by it cooperate accordingly in the performance of the contract.
16.8 If the Client does not fulfill its obligations to cooperate on the agreed dates or to the agreed extent, the services provided by the Contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. Schedules for the services to be provided by the Contractor shall be postponed to a reasonable extent. The Client shall compensate the Contractor separately for any additional expenses and/or costs incurred as a result at the Contractor’s applicable rates.
16.9 The Client shall ensure that its employees and any third parties attributable to it handle the equipment and technology used by the Contractor and any assets provided to it with care; the Client shall be liable to the Contractor for any damage.
16.10 Unless otherwise agreed, the provision of materials and cooperation by the client shall be free of charge.
17 Place of fulfillment and jurisdiction
17.1 The place of performance shall be the Contractor’s registered office. In the case of shipment, the risk shall pass to the Client as soon as the Contractor has handed over the goods to the carrier selected by it.
17.2 The location of the computer systems covered by the contract is contractually defined with regard to the provision of maintenance services and the connectivity to be guaranteed. In the event of a change of location of the computer systems, the Contractor shall be entitled to redefine the flat rate or to declare that it shall become free of performance with regard to the provision of maintenance services and the connectivity to be guaranteed at the time of relocation.
17.3 The place of jurisdiction for all legal disputes arising between the Contractor and the Client in connection with this contractual relationship shall be the competent court for the Contractor’s registered office. Notwithstanding this, the Contractor shall be entitled to sue the Client at its general place of jurisdiction.
17.4 Insofar as designations relating to natural persons in this contract are only given in the masculine form, they refer to women and men in the same way. When applying the term to certain natural persons, the respective gender-specific form shall be used.
18 Applicable law
The contract and all reciprocal rights and obligations and claims between the Contractor and the Client derived therefrom shall be governed by Austrian substantive law to the exclusion of its conflict of law rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Data protection agreement
The protection of your personal data is of particular concern to us. We therefore process them exclusively on the basis of the statutory provisions (GDPR, TKG 2003). In our data protection information we inform you about the most important aspects of data processing in the context of our website!