SOFA 1 GmbH
Phone: +43 676 54 52 211
Object of the company: software development
Commercial register number: FN 488237x
VAT number: ATU73116068
Commercial register court: Mattighofen
Company headquarters: 5230 Mattighofen
Supervisory authority: district authority Braunau
Professional law: trade regulations: www.ris.bka.at
Member of the Upper Austrian Chamber of Commerce, Information & Consulting division
Job Title: Software Development
Information on online dispute resolution:
Consumers have the option of submitting complaints to the EU’s online dispute resolution platform: http://ec.europa.eu/odr. You can also send any complaints to the email address given above.
TERMS OF SERVICE
for operator services in information technology
1.1 The contractor (AN) provides for the client (AG) services in information technology and the operation of hardware and software components in compliance with the attached service level forming an integral part Agreements (SLAs).
1.2 These General Conditions (GC) apply to all current and future services provided by the AN provides to the AG, even if in individual cases conclusion of the contract, no express reference is made to the AB. The general terms and conditions of the customer only apply if they are accepted in writing by the contractor were recognized.
2. Scope of Services
2.1 The exact scope of the Services of the AN is defined in the respective SLA with the AG. Unless otherwise agreed, the Contractor shall provide the Services during the contractor’s normal business hours according to the SLA. The Contractor will be provided in accordance with the respective SLA for the provision and ensure the availability of the services.
2.2 Basis for the Provision of services by AN used facilities and technology is the qualitative and quantitative performance requirement of the AG, as he on based on the information provided by AG was determined. Do new requirements of the AG mean a change in the Services or the technology used is required submit a corresponding offer to the contractor at the request of the client.
2.3 The Contractor is entitled to Provision of the services used facilities free of charge Discretion to change if not affecting services expect is.
2.4 Services by the AN, those by the AG beyond the agreed scope of services are taken by the AG according to actual personnel and Material expenses are remunerated at the rates applicable at the time of the Contractor. These include in particular, services outside the normal business hours of the contractor, Analyzing and eliminating faults and errors caused by
improper handling or operation by the customer or others circumstances for which the Contractor is responsible have arisen. Likewise are Training services are generally not included in the services included and require a separate agreement.
2.5 If the AN at the request of the AG Services mediated by third parties, these contracts come exclusively between the customer and the third party according to the respective terms and conditions of the third party. The Contractor is only responsible for the work he has done himself services responsible.
2.6 The Client has no entitlement to the transfer of the source code of the software or other programmatic solutions created within the scope of the contract. Should the Client nonetheless desire the source code, this must be separately contractually agreed upon and compensated for.
2.7 All rights to the source code remain, unless expressly agreed otherwise, with the Contractor. Any dissemination, duplication, publication, or modification of the source code without the express written consent of the Contractor is strictly prohibited.
3. Cooperation and provision obligations of the AG
3.1 The AG undertakes to support actions necessary for the provision of the services are required by the contractor. The AG further undertakes to take any action necessary to fulfill the contract and which are not included in the Contractor’s scope of services.
3.2 If the Services are on site are provided to the AG, the AG shall provide the Services required by the contractor network components, Connections, supply current including peak voltage compensation, Emergency power supplies, storage spaces for plants, workplaces as well Infrastructure of the required scope and quality (e.g. air conditioning) available free of charge. In any case, the AG is for compliance with the requirements required by the respective manufacturer responsible for the operation of the hardware. Likewise, the AG for the Room and building security, including protection against water, fire and access by unauthorized persons. The AG is for special Safety precautions (e.g. security cells) in his responsible for the premises. The AG is not entitled to to issue and will issue instructions to employees of the Contractor – no matter what kind all requests regarding the provision of services exclusively to the Contact designated contact person.
3.3 The AG shall provide all information, data and documents required by the Contractor to carry out the order on the agreed dates and at its own expense in the form requested by the Contractor and, if requested, support the Contractor in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the work processes at the AG, which can cause changes in the services to be provided by the AN for the AG, require prior agreement with the AN with regard to their technical and commercial effects.
3.4 Insofar as this is not expressly included in the Contractor’s scope of services, the Customer shall provide a network connection at its own risk and expense.
3.5 The client is obliged to treat the passwords and log-ins required by the contractor to use the services confidentially.
3.6 The customer will also store the data and information handed over to the contractor so that they can be reconstructed at any time in the event of loss or damage.
3.7 The client will fulfill all of its obligations to cooperate in a timely manner so that the contractor is not prevented from providing the services. The AG ensures that the AN and/or the third parties commissioned by the AN are granted the necessary access to the premises at the AG for the provision of the services. The AG is responsible for ensuring that the employees of its affiliated companies involved in the fulfillment of the contract or third parties commissioned by it cooperate accordingly in the fulfillment of the contract.
3.8 If the AG does not fulfill its obligations to cooperate by the agreed deadlines or to the intended extent, the services provided by the AN shall still be deemed to have been provided in accordance with the contract, despite possible restrictions. Schedules for the services to be provided by AN are postponed to a reasonable extent. The customer will separately reimburse the additional expenses and/or costs incurred by the contractor at the rates applicable at the time of the contractor.
3.9 The AG ensures that its employees and the third parties attributable to it treat the equipment and technologies used by the AN and any assets made available to it with care; the AG is liable to the AN for any damage.
3.10 Unless otherwise agreed, supplies and cooperation by the AG are free of charge.
If, according to the agreements made between the contractual partners, employees of the AG are taken on by the AN, a separate written agreement must be made about this.
5. Change Requests
Both contractual partners can request changes to the scope of services at any time (“change request”). However, a desired change must provide an accurate description of the same, the reasons for the change, the impact on scheduling and the costs in order to give the addressee of the change request the opportunity for an appropriate evaluation. A change request only becomes binding when both contractual partners have signed it with legal effect.
6. Performance Disruptions
6.1 The contractor undertakes to provide the services in accordance with the contract. If the Contractor does not provide the services at the scheduled time or only inadequately, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to start rectifying the defect immediately and to provide its services properly and free of defects within a reasonable period of time by Wahl repeats the affected services or carries out necessary rectification work.
6.2 If the defectiveness is based on provisions or cooperation by the AG or on a breach of the obligations of the AG according to point 3.9, any obligation to remedy the defect free of charge is excluded. In these cases, the services provided by the contractor are still deemed to have been provided in accordance with the contract, despite possible restrictions. At the request of the client, the contractor will remedy the defect for a fee.
6.3 The AG will support the AN in eliminating the defects and provide all the necessary information. Any defects that have occurred must be reported to the Contractor immediately in writing or by e-mail. The Client shall bear the additional work involved in eliminating the error caused by a late notification.
6.4 The provisions of this point apply analogously to any deliveries of hardware or software products from the contractor to the client. The warranty period for such deliveries is 6 months from handover. § 924 ABGB “Assumption of defectiveness” is mutually excluded. For any third-party hardware or software products made available to the AG by the AN, the respective warranty conditions of the manufacturer of these products shall take precedence over the provisions of this point. The Contractor retains title to all hardware and software products supplied by him until full payment has been made.
The contractor is obliged to comply with the degrees of fulfillment or recovery times specified in the SLA according to priorities. If the Contractor exceeds the time limits specified in the SLA for the recovery, the Contractor must pay penalties for each hour of exceeding until the actual recovery (fulfillment) to the AG according to the SLA:
The above-mentioned penalties per year are limited to 20% of the total annual fee. The assertion of a further claim for damages, unless in the case of intent or gross negligence, is excluded. Should overruns result in penalties, the Contractor must be informed immediately in writing.
8.1. The contractor shall only be liable to the client for damage for which he can prove that he is at fault in the event of gross negligence. This also applies mutatis mutandis to damage caused by third parties called in by the contractor. In the event of culpable personal injury, the contractor is liable without limitation.
8.2. Liability for indirect damage – such as lost profits, costs associated with business interruption, loss of data or claims by third parties – is expressly excluded.
8.3. Claims for damages become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the person causing the damage.
8.4. If the contractor performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this connection, the contractor assigns these claims to the customer. In this case, the client will primarily rely on these third parties.
8.4. If data backup is expressly agreed as a service, liability for the loss of data is not excluded, deviating from point 8.2, but is limited to a maximum of EUR 10% of the order amount per case of damage, but no more than EUR 15,000.00. Warranty and damage claims of the AG that go beyond those mentioned in this contract – regardless of the legal basis – are excluded.
9.1 The remuneration and conditions to be paid by the client result from the contract. Statutory sales tax will be charged additionally.
9.2 Travel times of employees of the Contractor count as working time. Travel times are remunerated at the agreed hourly rate. The rates mentioned change according to the price escalation clause in point 9.5. In addition, the travel costs and any accommodation costs will be reimbursed by the AG according to the actual expenditure. Travel and incidental expenses will be reimbursed upon presentation of receipts (copies).
9.3 The AN is entitled at any time to make the provision of services dependent on the payment of down payments or the provision of other securities by the AG in an appropriate amount.
9.4 Unless otherwise contractually agreed, one-off payments after the service has been rendered, ongoing payments are billed quarterly in advance. The invoices submitted by the Contractor, including sales tax, are payable no later than 14 days after receipt of the invoice without any deductions and free of charges. The terms of payment specified for the entire order apply analogously to partial invoices. A payment is deemed to have been made on the day on which the Contractor can dispose of it. If the client is in default with his payments, the contractor is entitled to charge the statutory default interest and all costs necessary for collection. If the client’s delay exceeds 14 days, the contractor is entitled to discontinue all services. The Contractor is also entitled to make the payment for all services already rendered due immediately, regardless of any payment deadlines.
9.5 Current remuneration is based on the collective agreement salary of an employee of companies in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).
9.6 The customer is only permitted to offset against a counterclaim that has been recognized by the contractor or has been legally established. The client is not entitled to a right of retention.
9.7 All duties resulting from the contractual relationship, such as legal transaction fees or withholding taxes, are borne by the AG. Should the contractor be held liable for such charges, the client will indemnify and hold the contractor harmless.
10. Force Majeure
Insofar as and as long as obligations resulting from force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, power failure, failure of means of transport, failure of telecommunications networks or data lines, changes in the law affecting the services after the conclusion of the contract or other unavailability of products cannot be fulfilled in a timely manner or properly, this does not constitute a breach of contract.
11. Rights to Use Software Products and Documentation
11.1 Insofar as software products are provided to the AG by the AN or the AG is enabled to use software products as part of the services, the AG has the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unchanged form use.
11.2 When using software products in a network, a license is required for each concurrent user. When using software products on stand-alone PCs, a license is required for each PC.
11.3 For third-party software products made available to the AG by the AN, the respective license provisions of the manufacturer of these software products shall take precedence over the provisions of this point.
11.4 Unless a separate agreement is made, no further rights to software products are transferred to the customer. The rights of the AG according to §§ 40(d), 40(e) UrhG are not affected by this.
11.5 All documents provided to the AG by the AN, in particular the documentation for software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.
12. Term of Agreement
12.1 The contract comes into force when signed by both contracting parties and runs for an indefinite period. The contract can be terminated by either party by registered letter, subject to a notice period of 6 months, but no earlier than the end of the minimum term agreed in the contract.
12.2 Each contractual partner is entitled to terminate the contract prematurely and without notice for an important reason by registered letter. An important reason exists in particular if the other contracting party violates essential obligations under the contract despite a written warning and threat of termination or bankruptcy or other insolvency proceedings are filed against the other contracting party, opened or rejected due to lack of assets or the services of the other contracting party are hampered or prevented for a period of more than six months as a result of force majeure.
12.3 The contractor is also entitled to prematurely terminate the contract for important reasons if essential parameters of the service provision have changed and the contractor can no longer be expected to continue the services from an economic point of view for this reason.
12.4 Upon termination of the contract, the AG must immediately return to the AN all documents and documentation provided to him by the AN.
12.5 Upon request, the AN will support the AG at the end of the contract at the hourly rates applicable at the AN in returning the services to the AG or a third party named by the AG.
13.1 When handling personal data, the Contractor will observe the provisions of the Data Protection Act and the Telecommunications Act and take the technical and organizational measures required for data protection in the Contractor’s area of responsibility. The Contractor undertakes, in particular his employees, to comply with the provisions of Section 15 of the Data Protection Act.
13.2 The contractor is not obliged to check the admissibility of the data processing commissioned by the client in terms of data protection regulations. The AG must ensure that personal data is allowed to be transferred to the contractor and that such data is processed by the contractor.
13.3 The AN shall take all reasonable measures to protect the data and information of the AG stored at the AN’s locations against unauthorized access by third parties. However, the Contractor is not responsible if third parties nevertheless manage to illegally gain access to the data and information.
13.4 With the conclusion of the contract, the client agrees that the data from this business case may also be transmitted to subcontractors who are involved in the processing of this order.
14.1 Each contracting party assures the other that it will treat all business secrets made known to it by the other party in connection with this contract and its implementation as such and will not make them accessible to third parties unless they are generally known, or to the recipient beforehand without any obligation to were known to be confidential, or were communicated or made available to the recipient by a third party without a confidentiality obligation, or were demonstrably independently developed by the recipient
have been disclosed or are to be disclosed due to a legally binding official or judicial decision.
14.2 The subcontractors associated with the contractor are not considered third parties insofar as they are subject to a confidentiality obligation corresponding to this point.
15.1 In the contract, the contractual partners name knowledgeable and competent employees who can make or initiate the necessary decisions.
15.2 During the term of the contract and up to one year after the end of the contract, the client will not poach employees employed by the contractor to provide the services either itself or through third parties. For each case of infringement, the AG undertakes to pay the AN a contractual penalty in the amount of twelve times the gross monthly salary that the employee concerned last received from the AN, but at least the collective agreement salary of an employee of companies in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).
15.3 Changes and additions to the contract must be in writing. This also applies to the cancellation of this formal requirement.
15.4 Should one or more provisions of the contract be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision is to be replaced by a corresponding valid regulation that comes closest to the economic purpose of the invalid or unenforceable clause.
15.5 Any disposal of the rights or obligations arising from the contract requires the prior written consent of the other contractual partner. However, the contractor is entitled to transfer the contract to a company affiliated with the contractor under group law without the consent of the client.
15.6 The Contractor is entitled to use third parties in full or in part to fulfill its obligations.
15.7 Unless otherwise agreed, the legal provisions applicable between registered traders shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the place of business of the contractor shall apply exclusively.
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