- Scope of application, bases
1.1. The General Terms and Conditions of Business of neo
Software Produktions GmbH set out hereinbelow shall apply to all
supplies and services, both for and without consideration, provided by
neo Software Produktions GmbH (hereinafter referred to as "Contractor")
to its contract partners (hereinafter referred to as "Principal").
1.2. The mutual rights and duties of the parties
shall be defined exclusively pursuant to the content of the order and
these General Terms and Conditions of Business.
1.3. A contract shall be deemed to be concluded
either (i) by Contractor's confirmation of an order or (ii) by the
signing of an order form by both parties.
1.4. Any general terms and conditions of business of
Principal in conflict herewith shall apply only if Contractor has
expressly accepted such terms and conditions in writing. There are no
additional oral agreements in place. Any changes and amendments hereto
and/or to the contract concluded on the basis hereof and of the order
shall only be valid if made in writing. This shall also apply to a
waiver of the requirement of written form and to the termination of the
contract for whichever reason.
- Scope of services
2.1. The scope of services depends on the relevant
individual written order, which shall, if required, be updated on an
ongoing basis and approved by both parties and added as a schedule to
the original individual order. Unless agreed otherwise, any and all
schedules shall become material parts of the contract and shall in case
of doubt prevail over these General Terms and Conditions of Business.
Where Contractor is involved in the specification of the scope of
services and the preparation of an individual order respectively
Contractor may, in the absence of any explicit regulation, invoice a
special remuneration based on the principle "time and material" for
services performed by him in connection with the preparation of the
individual order.
2.2. If it should be found during the performance of
the works that the performance of the order in accordance with the
description of services is factually or legally impossible, Contractor -
to the extent he is aware of such circumstance - shall notify Principal
thereof. In such case the parties shall create the prerequisites for
facilitating performance largely in compliance with the order; the
provision of section 4.2 shall apply mutatis mutandis. If any such
change should be impossible or unreasonable, Principal shall reimburse
the costs and expenses incurred up to such time in connection with
Contractor's activities and shall pay to Contractor the remuneration for
all services performed, including any activities required for
re-establishing the original condition.
2.3. Unless agreed otherwise, Contractor shall
perform the contractual services at Contractor's premises. The selection
of the employees and subcontractors, if any, who shall perform the
contractual services shall be at Contractor's sole discretion, unless
the parties have expressly agreed otherwise.
2.4. Any dispatch of data carriers, documentation
and service descriptions shall be at Principal's risk and expense. Such
risk shall include the risk of any loss of data and/or programs.
- Duty to co-operate
3.1. Principal undertakes to provide Contractor with all
required information and materials and to submit the same in due time
to enable Contractor to consider them within the framework of the
performance of the contract. Principal shall keep Contractor
continuously informed on any and all circumstances relevant for the
performance of the contract.
3.2. If Principal fails to comply with his duty to
co-operate Contractor shall have the right to amend the agreed schedule
of time and costs in accordance with the delay caused by the relevant
culpable non-compliance with the duties set out in section 3.1.
- Acceptance, changes
4.1. Any and all supplies and services are to be
accepted in accordance with the provisions of this section 4.1: Within
two weeks of Contractor's announcement that any supplies/services are
ready for acceptance Principal shall inspect the same to verify their
compliance with the agreed specifications. During such inspection
Principal shall keep minutes documenting the individual tests and
relevant results. Acceptance shall be confirmed in writing by Principal
within three weeks of the announcement that supplies/services are ready
for acceptance. If the said period expires without a statement being
issued and/or the Principal giving notice of material defects by
submitting a detailed written list of defects, the relevant
supplies/services are deemed to have been accepted.
4.2. If Principal requests that subsequent to the
placing of the order the agreed scope of services be changed, Contractor
shall comply with such request for changes to the extent it is
reasonable for him to do so and shall submit an offer to Principal
setting out the costs to be expected as a result of the changes. Upon
Principal's acceptance of such offer the order shall be deemed to have
been amended in accordance with the offer. In the absence of such
agreement Contractor shall not be under any obligation to perform
additional services.
- Right of use
5.1. Unless any individual order expressly provides for a
different agreement, Contractor shall grant to Principal - subject to
the condition precedent that the entire amount contracted for be paid in
full - a non-exclusive license to use the program components that
constitute the subject matter of the individual order, irrespective of
whether these were designed specifically for Principal or had already
been available at Contractor. Unless agreed otherwise in the relevant
individual order, any programs supplied on data carriers (i) may only be
copied for backup purposes, (ii) may only be used on such number of
workstations as corresponds to the number of data carriers supplied, and
(iii) may only be used for commercial purposes within the scope of
Principal's business. Any other use, such as in particular
decompilation, modification, duplication or making accessible to third
parties or persons within the company (other than on licensed
workstations), shall be precluded. The transfer or sublicensing of such
rights shall not be permitted.
5.2. On each copy of any programming produced by
Contractor Principal shall name Contractor as the author in a place and
in a typeface and type size as are customary in the industry, and shall
attach thereto or make visible thereon the word/figurative mark
"Rockstar Vienna" in the form as will be announced to him and in a place
as is customary in the industry; Principal undertakes to provide for
the attachment of the notice © [year] Rockstar Vienna, neo Software
Produktions GmbH.
5.3. Any programs or program components by third
parties that are provided by Contractor and/or are required for
technical reasons for the proper use of the supplies/services, shall be
listed in the relevant individual order; except where any deviating
agreement is contained in the individual order, Principal shall be
solely responsible for ensuring that such programs or program components
will be licensed directly to Principal by the relevant owner of the
rights. Contractor assumes no liability whatsoever in relation to such
programs or program components as regards the lawfulness of their use.
5.4. Unless any individual order expressly provides
for a different agreement, no rights in the source code will be granted
(and the source code will not supplied).
- Freedom from third party rights
6.1. Contractor is liable that the supplies/services
are, to the best of his knowledge, free from proprietary rights of third
parties and that no other rights exist which restrict or preclude their
use by Principal. Contractor is not subject to any liability in
relation to programs or program components by third parties.
6.2. Any obligations to exploitation companies
within the framework of the use of the supplies/services in accordance
with the contract, shall be performed by Principal.
6.3. Principal shall not be liable for the unrestricted usability of any title and/or trademark rights created by him.
- Payment
7.1. Unless expressly stipulated otherwise, any and all
prices are given in Euros exclusive of value-added tax. They apply
exclusively to the relevant order.
7.2. In case of library (standard) programs the list
price applicable on the day on which the order is placed shall apply,
unless the relevant individual order provides for a different agreement.
7.3. The invoices and partial invoices issued by
Contractor shall be payable inclusive of value-added tax within two
weeks of receipt of the invoice.
7.4. It is not permitted to set off any counterclaims of Principal against claims of Contractor.
7.5. Claims against Contractor must not be assigned without express written consent.
- Date of delivery
8.1. Contractor shall endeavour to comply with the
agreed deadlines. In order to facilitate compliance therewith Principal
shall provide Contractor with continuing support and with such
information as is required for enabling proper performance.
8.2. If a delay in delivery should occur and
responsibility therefor is solely attributable to Contractor Principal
shall have the right to rescind the contract after setting an adequate
grace period of not less than eight weeks. Any delays in delivery that
are due to labour disputes, force majeure, transport embargoes or
insufficient co-operation by Principal, shall not entitle Principal to
rescind the contract.
- Warranty and liability
9.1. Principal shall ensure - in particular prior to the
lapse of the warranty period - that any malfunctions of the components
supplied by Contractor shall be notified as soon as they become
identifiable.
9.2. Contractor is liable for defects in supplies
and services and for damage due to the operation of supplies and
services respectively, exclusively within the scope of this section 9.
9.3. Contractor warrants that the supplies and
services shall be free from defects if used in accordance with the
contractual agreements. Principal is aware that where software
components are concerned and in accordance with the state of the art, it
is impossible to produce a program that is completely free from errors.
In this context only such errors shall be deemed to be defects that are
to be regarded as such in accordance with the state of the art.
9.4. Any defects within the meaning of section 9.3
shall be notified in writing by Principal to Contractor within three
months of acceptance, failing which Principal's rights under section 9.3
shall be deemed forfeited. Any defects present at the time of
acceptance but identified only at a later time shall be notified by
Principal to Contractor forthwith by submission of a detailed written
list of defects, however, not later than within three months of
acceptance, otherwise the relevant rights will be deemed forfeited.
Contractor shall remedy at his expense any defects notified within three
months of acceptance. Any further claims of Principal shall be
precluded. Upon Contractor's request Principal shall forthwith provide
Contractor with documents and information required by Contractor for
evaluating and remedying the defect. Contractor shall have the right to
provide an adequate provisional solution to the extent this can be
deemed reasonable.
9.5. Principal undertakes
- to forthwith inform Contractor of any defect that occurred; any such
notice shall be complete and include any and all information that might
be useful to Contractor for identifying the cause of the defect, e.g.
time of occurrence, type of error, condition of the system at the time
the problem occurred, and suspected cause; notice of defect must be
given by telephone and in writing;
- to grant Contractor access to the affected equipment at any time for facilitating the removal of the defect;
- to provide Contractor with the name of an employee trained in
the application of software in connection with the use of the defective
object of performance, who shall act as contact person for Contractor.
9.6. In relation to defective software and/or hardware Principal shall inform Contractor whether the defect
- impairs the efficiency of the system (error category 1); this
includes all defects that go beyond error category 2, i.e. loss or
substantial impairment of functions that cannot be replaced by other
functions, or malfunctions that substantially reduce the efficiency of
the entire system;
- hampers the efficiency but affects the usability of the system
only to a minor extent (error category 2), e.g. loss or substantial
impairment of functions that can be replaced by other functions;
- affects the efficiency of the system only to a minor extent
(error category 3), e.g. impairment of user convenience or similar, but
without affecting functions.
9.7. Contractor shall forthwith commence efforts for remedying the defect,
however, not later than
- within 48 hours of the notice of defect in case of defects of error
category 1; if notice of defect is given between 7.00 p.m. and 7.00 a.m.
or during Sundays or holidays, such 48-hour period shall be deemed to
commence at 9.00 a.m. on the next working day;
- within 3 working days of the notice of defect in case of defects of error category 2;
- within an adequate period in case of defects of error category
3, which period is to be promised with binding effect within 14 days of
the notice of defect.
9.8. No warranty shall apply
- to the extent Principal himself modifies the supplies/services or has them modified by third parties;
- where the defect is due to a non-compliance or faulty compliance with the duty to co-operate imposed on Principal;
- where the defect is due to any non-compliance with installation requirements of which Principal had been informed.
9.9. Contractor is liable for damage only where it is
due to intent or gross negligence. Liability for damage due to slight
negligence is precluded. Liability for indirect damage, e.g. lost
profit, consequential harm caused by a defect or damage not foreseeable
as a rule at the time the contract was concluded, shall be precluded
irrespective of the legal grounds, to the extent this is permitted by
law. However, any liability applicable in accordance with this provision
can in no event exceed the total amount contracted for.
9.10. Where any loss of data or programs is
attributable to Contractor, he shall be liable only up to the amount of
the expenditure incurred for restoration, provided Principal has made
backups on a regular basis, at least at 24-hour intervals, in order to
ensure that lost data can be restored by exerting reasonable efforts.
9.11. Contractor shall not be subject to any liability
- to the extent Principal himself modifies the supplies/services or has them modified by third parties;
- where the defect is due to a non-compliance or faulty compliance with the duty to co-operate imposed on Principal;
- where the defect is due to any non-compliance with installation requirements of which Principal had been informed.
- Data protection, confidentiality
10.1. Contractor shall ensure that his employees comply with the provisions of the Data Protection Act.
10.2. Both parties undertake that they shall keep
confidential any and all information obtained in the performance of the
order by either party or from IT systems or other documents of a party,
unless a party releases the other party in writing from such obligation
in respect of a specific situation or the relevant information is known
to the public. Moreover, the parties undertake that, in the event they
should employ third parties for performing their services, they shall
impose such confidentiality obligation in writing on all third parties
employed by them for performing their services, failing which they shall
be liable for damages. Both parties shall comply with any and all
statutory confidentiality obligations and shall employ only such
employees and agents on whom a confidentiality obligation has been
imposed expressly in writing. Where any documents are specifically
marked as being "confidential" or with an equivalent designation, the
parties shall comply with the safety standards as notified in each case.
- Final provisions
11.1. These General Terms and Conditions of Business and
the contracts concluded on the basis hereof shall be governed by
Austrian law, whereby the parties preclude the application of the UN
Convention on Contracts for the International Sale of Goods.
11.2. Any and all disputes arising out of these
General Terms and Conditions of Business and of the contracts concluded
on the basis hereof, including disputes relating to their conclusion,
validity, termination or nullity, shall be subject to the exclusive
jurisdiction of the Vienna Commercial Court.
11.3. Before instituting court proceedings both
parties shall enter into negotiations and endeavour to reach an
out-of-court settlement of the dispute. If any party fails to comply
with the duty to first enter into negotiations out of court - and unless
there is danger in delay - such party shall bear the entire cost of the
court proceedings irrespective of their outcome.
11.4. If any one or more provisions of these General
Terms and Conditions of Business or of the contracts concluded on the
basis hereof, should turn out to be invalid in whole or in part, or if
any loophole should exist, the validity of the remaining provisions of
these General Terms and Conditions of Business and of the contracts
concluded on the basis hereof shall not be affected. In the place of the
invalid provision or in order to tighten the loophole, both contracting
parties shall be obliged to agree on a valid regulation which as
closely as possible reflects the intended content of the agreement.
