- 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
the contract partner named in the order form (hereinafter referred to as
"Contractor") to neo Software Produktions GmbH (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 form
and these General Terms and Conditions of Business. Where any order form
of Principal comprises provisions deviating from these General Terms
and Conditions of Business, such other provisions shall be deemed to
have been agreed.
1.3. A contract shall be deemed to be concluded
either (i) by the Principal's confirmation of an order, which shall then
define the mutual rights and obligations of the parties, or (ii) by the
signing of an order form by both parties.
1.4. Any general terms and conditions of business of
Contractor in conflict herewith shall apply only if Principal 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
form 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.
- Supplies/services
2.1. Principal commissions Contractor on the basis of
individual written orders pursuant to the relevant order form, which
shall regulate the details of the contractual relationship and shall, if
required, be updated on an ongoing basis and approved by Principal to
confirm his agreement and added as a schedule to the original individual
order. Unless agreed otherwise, any and all schedules shall become a
material part of the contract. The material parts of each individual
order shall include in particular descriptions of services, concepts and
sets of specifications. These shall be prepared by Contractor on the
basis of the documents and information provided to him without giving
rise to any additional remuneration, unless agreed otherwise.
Descriptions of services, concepts and sets of specifications shall be
reviewed by Contractor for correctness, completeness and conclusiveness.
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
shall forthwith notify Principal thereof. In such case the parties shall
create the prerequisites for facilitating performance largely in
compliance with the order. Contractor shall have the right to withdraw
from the order only if (i) such impossibility cannot be removed by any
reasonable change of the order and (ii) no fault whatsoever is
attributable to Contractor in regard of the cause of such impossibility.
Only if these prerequisites are complied with Principal shall be
obliged to reimburse the costs and expenses incurred up to such time in
connection with Contractor's activities.
2.3. Unless agreed otherwise, Contractor shall
perform the contractual services at Principal's premises. The selection
of the employees who shall perform the contractual services shall be at
Contractor's sole discretion, unless the parties have expressly agreed
otherwise. Contractor shall not be permitted to employ subcontractors in
the performance of his contractual obligations without Principal's
written approval.
2.4. Any dispatch of data carriers, documentation
and service descriptions shall be at Contractor's risk and expense. Such
risk shall include the risk of any loss of data and/or programs.
2.5. Any and all supplies and services are to be
accepted in accordance with the provisions of this section 2.5:
Contractor shall provide the supplies/services to Principal by the
agreed date. Within four weeks Principal shall inspect the
supplies/services to verify their compliance with the agreed
specifications. Acceptance must be confirmed in writing by Principal and
requires a successfully completed operational test, which is deemed to
have been achieved only if the supplies/services possess the qualities
specified in the relevant individual order and meet the requirements as
stipulated. In case of non-compliance Principal shall specify the
existing defects and refuse acceptance within the aforesaid period. In
such case the identified defects are to be remedied within ten working
days, failing which Principal may enforce any rights he is entitled to
under law. If Principal does not confirm acceptance within four weeks
despite the prerequisites being met, Contractor shall submit a request
to Principal that he either confirm acceptance or refuse acceptance
within one week of receipt of such request. If this period also expires
without success, the supplies/services shall be deemed to have been
accepted.
2.6. Even after the order has been placed Principal
may request changes to the agreed scope of services at any time;
Contractor shall comply with such requests for changes without
additional charges to the extent such compliance is reasonable for
Contractor. Where such compliance is unreasonable Contractor shall
explain the same and submit a relevant new regulation to Principal
within a period of 14 days, failing which the requested changes shall be
deemed to become part of the original order.
- Rights of use
3.1. Principal shall have the right to use and exploit
the supplies/services, whether modified or not, in any manner without
limitation. A transfer to third parties is permitted.
3.2. Contractor grants to Principal the irrevocable
and exclusive right, without limitation as to time, territorial or
factual scope, to use in any manner copyrights and related proprietary
rights that constitute the subject matter of an individual order. The
granting of such right shall include in particular the authority of
Principal to use the rights in any manner in Austria and abroad, e.g. by
duplication, distribution, transmission, performance and any kind of
public reproduction. Principal shall further have the right to revise or
otherwise modify at his discretion the supplies/services without
Contractor's consent and to exploit the products created thereby in the
same manner as the original versions of the supplies/services.
3.3. Where the supplies/services result in the
creation of inventions eligible for patent or design protection,
Contractor shall grant to Principal the right to have them registered in
Principal's name and use them on an exclusive basis. Contractor is not
entitled to a right of joint use. Where the aforementioned inventions
were created by employees of Contractor and an obligation to pay
remuneration applies in respect of such employees pursuant to statutory
provisions, in particular under the Patent Act, Principal shall pay such
remuneration in the amount required by law.
3.4. Contractor shall grant to Principal a
non-exclusive right of use in respect of works or parts of works that
had already been available at Contractor; any such works or parts of
works shall be specifically listed in the relevant individual orders.
The same shall apply to any use of third parties' accomplishments (e.g.
photographs, standard software).
3.5. Principal shall have the right, without having
to obtain any further consent from Contractor, to transfer the aforesaid
rights of use to third parties in part or in full or grant relevant
rights to third parties.
3.6. Principal is not under any obligation to name the author.
3.7. After acceptance Contractor shall hand over to
Principal any and all originals and copies of programs (including source
programs), documentation and other documents.
- Granting of rights in the source code
4.1. Contractor grants to Principal an exclusive right
of use in the source code of the supplies/services. Where Principal is
granted a non-exclusive right of use in works or parts of works in
accordance with section 3.4 he shall also be granted a non-exclusive
right of use in the relevant source code.
4.2. Principal shall have the right, without having
to obtain any further consent from Contractor, to transfer the aforesaid
rights of use to third parties in part or in full or grant relevant
rights to third parties.
- Freedom from third party rights
Contractor is liable that the work products are free
from proprietary rights of third parties and that no other rights exist
that restrict or preclude their use by Principal.
5.2. Contractor shall hold harmless and indemnify
Principal from and against any claims that may be raised by third
parties in connection with the infringement of intellectual property
rights. The parties shall forthwith inform each other in writing if any
claims are raised against either party in connection with the
infringement of proprietary rights.
- Payment
6.1. Unless expressly stipulated otherwise, any and all
prices are given in Euros exclusive of value-added tax. They apply
exclusively to the relevant order.
6.2. 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.
6.3. The invoices issued by Contractor shall be
payable inclusive of value-added tax within thirty days of receipt of
the invoice. Partial invoices may be submitted only subject to an
express written agreement in the relevant individual order.
6.4. It is not permitted to set off any counterclaims of Contractor against claims of Principal.
6.5. Claims against Principal must not be assigned without express written consent.
- Date of delivery
7.1. Strict compliance with the deadlines agreed for the
performance of the contractual obligations undertaken by Contractor to
Principal is of essential importance.
7.2. In order to facilitate compliance with the
above, Principal shall provide Contractor with continuing support and
with the information required for enabling proper performance, in each
case within the customary scope. Contractor shall in turn inform
Principal on the current status in the performance of the order at any
time upon request. In case of non-compliance with the agreed deadlines
Contractor shall be liable to pay a penalty of 0.1% of the amount
contracted for each calendar day on which the default continues, which
penalty shall apply irrespective of fault; this shall not affect any
further claim to damages to which Principal may be entitled.
- Warranty
8.1. Contractor warrants that the supplies/services shall be free from defects.
8.2. The warranty period shall be 12 months and
shall commence upon final acceptance in respect of all
supplies/services. It shall be extended by the number of days on which
the supplies/services could not be used in accordance with their purpose
for more than 12 hours as a result of defects.
8.3. Contractor shall forthwith remedy defects at
his expense. Until the defects have been remedied completely Contractor
shall provide a provisional solution, to the extent this is possible and
reasonable in view of the consequences triggered by the defect.
8.4. Upon request Principal shall make available to
Contractor, to the extent this is deemed to be reasonable, documents and
information required by Contractor for evaluating and remedying the
defect/defects.
8.5. No warranty shall apply to the extent the cause
of any defect is due to a modification of the work products by
Principal or by a third party upon Principal's instruction without
Contractor's consent.
- Data protection, confidentiality
9.1. Contractor shall ensure that his employees comply with the provisions of the Data Protection Act.
9.2. Both parties undertake that they shall keep
confidential any and all information obtained in the performance of the
order at 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.
9.3. The contracting parties shall exchange
important information relating to the subject matter of the contract on
an ongoing basis. If any circumstances should become identifiable to one
of the parties that might jeopardise the performance of the contract in
accordance with its provisions, the other party shall be forthwith
informed in writing of such circumstances and any action to be
considered by such other party.
- Final provisions
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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.
