GTC – General Terms and Conditions
The following terms and conditions apply to the sale and delivery of all organisational services, programming services and licences for the use of software products by POLYGONS GmbH.
Scope of Contract and Validity
All orders and agreements shall only be legally binding if they are signed by the contractor in writing and in accordance with the company’s instructions and shall only be binding to the extent stated in the order confirmation. The client’s terms and conditions of purchase are hereby excluded for the present legal transaction and the entire business relationship. Offers are always subject to change.
Performance and testing
2.1 The subject of an order may be:
– Development of organisational concepts
– Global and detailed analyses
– Creation of individual programmes
– Delivery of library (standard) programmes
– Acquisition of rights of use for software products
– Acquisition of licences for the use of works
– Assistance with commissioning (changeover support)
– Telephone advice
– Programme maintenance
– Creation of programme carriers
– Other services
2.2 The development of individual organisational concepts and programmes shall be carried out in accordance with the type and scope of the binding information, documents and aids provided in full by the client. This also includes practice-oriented test data as well as test facilities to a sufficient extent, which the client shall make available in a timely manner, in normal working hours and at his own expense. If the client is already working in live operation on the system provided for testing, the responsibility for securing the live data lies with the client.
2.3 The basis for the creation of individual programmes shall be the written performance specification which the contractor shall prepare or the principal shall make available to him against calculation of the costs on the basis of the documents and information made available to him. This performance specification is to be checked by the client for correctness and completeness and marked with his approval. Change requests arising at a later date may lead to separate agreements on dates and prices.
2.4 Individually created software or programme adaptations require a programme acceptance by the client for the respective programme package at the latest four weeks after delivery. This shall be confirmed by the client in a protocol. (Check for correctness and completeness on the basis of the service description accepted by the contractor by means of the test data provided under point 2.2). If the client allows the period of four weeks to elapse without accepting the programme, the software supplied shall be deemed to have been accepted on the end date of the said period. If the client uses the software in live operation, the software shall be deemed to have been accepted in any case. Any defects that occur, i.e. deviations from the performance description agreed in writing, shall be reported by the Client to the Contractor with sufficient documentation, who shall endeavour to remedy the defects as quickly as possible. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required after the defects have been rectified. The Client shall not be entitled to refuse acceptance of software due to immaterial defects.
2.5 When ordering library (standard) programmes, the client confirms with the order that he is aware of the scope of services of the ordered programmes.
2.6 Should it become apparent in the course of the work that the execution of the order in accordance with the performance specification is actually or legally impossible, the contractor shall be obliged to notify the client of this immediately. If the Client does not amend the service description or create the preconditions for execution to become possible, the Contractor may refuse execution. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change to the service description by the client, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the contractor’s activities up to that point as well as any dismantling costs shall be reimbursed by the client.
2.7 Any dispatch of programme carriers, documentation and service descriptions shall be at the expense and risk of the principal. Any additional training and explanations requested by the Principal shall be invoiced separately. Insurance shall only be taken out at the request of the client.
Prices, taxes and fees
3.1 All prices are quoted in euros without value added tax. They apply only to the present order. The prices quoted are ex Contractor’s registered office or place of business. The costs of programme carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes etc.) as well as any contract fees shall be invoiced separately.
3.2 For library (standard) programmes, the list prices valid on the day of delivery shall apply. For all other services (organisational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the contractor is not responsible, shall be charged according to actual occurrence.
3.3 The costs for travel, daily and overnight allowances shall be invoiced separately to the Client at the rates applicable at the time. Travel times shall be deemed to be working time.
4.1 The contractor shall endeavour to meet the agreed dates of performance (completion) as closely as possible.
4.2 The targeted completion dates can only be met if the customer provides all the necessary work and documents in full by the dates specified by the contractor, in particular the performance specification accepted by him in accordance with point 2.3, and fulfils his obligation to cooperate to the necessary extent. The contractor shall not be responsible for delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed details and information or documents provided and these shall not lead to default on the part of the contractor. Any additional costs resulting therefrom shall be borne by the Client.
4.3 In the case of orders comprising several units or programmes, the contractor is entitled to make partial deliveries or to issue partial invoices.
5.1 The invoices issued by the contractor, including value added tax, shall be payable without any deductions and free of charges no later than 14 days after receipt of the invoice. For partial invoices, the terms of payment stipulated for the entire order shall apply analogously.
5.2 In the case of orders comprising several units (e.g. programmes and/or training, realisations in partial steps), the contractor shall be entitled to invoice after delivery of each individual unit or service.
5.3 Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfilment of the contract by the contractor. Failure to comply with the agreed payments shall entitle the contractor to suspend the work in progress and to withdraw from the contract. All associated costs as well as loss of profit shall be borne by the Client. In the event of late payment, interest on arrears shall be charged at the rate customary in banking. In the event of non-compliance with two instalments in the case of part payments, the contractor shall be entitled to cause a loss of dates to come into effect and to call in handed-over acceptances.
5.4 The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.
Copyright and use
6.1 The contractor or his licensors are entitled to all copyrights to the agreed services (programmes, documentation, etc.). The customer shall exclusively receive the right to use the software after payment of the agreed remuneration exclusively for his own purposes, only for the hardware specified in the contract and to the extent of the purchased number of licences for simultaneous use on several workstations. Only a licence to use the work is acquired through the present contract. Distribution by the client is excluded in accordance with the Copyright Act. The Client’s participation in the production of the software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the Contractor’s copyrights shall result in claims for damages, whereby full satisfaction shall be paid in such a case.
6.2 The Principal is permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.
6.3 Should the disclosure of interfaces be necessary for the creation of interoperability of the software in question, this shall be ordered by the Client from the Contractor against reimbursement of costs. If the contractor does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively for the creation of interoperability. Misuse shall result in compensation for damages.
Right of withdrawal
7.1 In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the contractor, the principal shall be entitled to withdraw from the order in question by registered letter if the agreed service is not provided in essential parts even within the reasonable grace period and the principal is not at fault for this.
7.2 Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond the control of the contractor shall release the contractor from the obligation to deliver or allow him to reschedule the agreed delivery time.
7.3 Cancellations by the Client are only possible with the written consent of the Contractor. If the contractor agrees to a cancellation, he shall be entitled to charge a cancellation fee in the amount of 30% of the order value of the total project not yet invoiced, in addition to the services rendered and costs incurred.
Warranty, maintenance, changes
8.1 Notices of defects shall only be valid if they concern reproducible defects and if they are documented in writing within 4 weeks after delivery of the agreed service or, in the case of individual software, after acceptance of the programme in accordance with clause 2.4. In the case of warranty, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice of defect, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to examine and remedy the defect. The presumption of defectiveness pursuant to § 924 ABGB (Austrian Civil Code) shall be excluded.
8.2 Corrections and additions which prove necessary until the handover of the agreed service due to organisational and programming deficiencies for which the contractor is responsible shall be carried out by the contractor free of charge.
8.3 Costs for assistance, misdiagnosis as well as error and fault rectification for which the Client is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This also applies to the rectification of defects if programme changes, additions or other interventions have been made by the client himself or by a third party.
8.4 Furthermore, the contractor shall not assume any warranty for errors, malfunctions or damage which are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage.
8.5 Any warranty by the contractor shall lapse for programmes that are subsequently modified by the client’s own programmers or third parties.
8.6 Insofar as the subject of the order is the modification or supplementation of already existing programmes, the warranty refers to the modification or supplementation. The warranty for the original programme shall not be revived thereby.
The contractor shall be liable for damages within the scope of the statutory provisions, provided that intent or gross negligence can be proven against him. Liability for slight negligence is excluded. Compensation for consequential damage and financial loss, savings not achieved, loss of interest and damage arising from third party claims against the contractor shall be excluded in all cases to the extent permitted by law.
The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees of the other contractual partner who have worked on the realisation of the orders for the duration of the contract and 12 months after termination of the contract. The contracting party in breach of this provision shall be obliged to pay liquidated damages in the amount of one year’s salary of the employee.
Data protection, confidentiality
The contractor shall oblige his employees to comply with the provisions of §15 of the Data Protection Act.
Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.
Unless otherwise agreed, the legal provisions applicable between registered traders shall be governed exclusively by Austrian law, even if the order is executed abroad. For any disputes, the local jurisdiction of the court with subject-matter jurisdiction for the contractor’s place of business shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall apply only insofar as the Consumer Protection Act does not mandatorily provide for other provisions.