General Terms and Conditions TECHWAVE GmbH
valid from 01.01.2019
:1.1 The following terms and conditions shall apply between TECHWAVE GmbH, hereinafter referred to as the “Contractor”, and the customer, whereby the Contractor shall not be subject to the customer’s general terms and conditions unless expressly agreed in writing.
1.2. The contractor provides IT services, in particular for Microsoft and cloud software. The customer declares to be an entrepreneur in the sense of the KSchG and UGB (Austrian Commercial Code), respectively that the commissioning is carried out for his business sector.
1.3. These General Terms and Conditions shall apply to all present and future services provided by the Contractor to the Customer; this shall apply even if in individual cases no clear reference is made to the General Terms and Conditions when the contract is concluded.
2 Offers and orders:
2.1 Unless otherwise agreed, offers are valid for 14 days from the date of issue. The Contractor shall begin to execute these within 4 weeks of their acceptance or, as a rule, as soon as the necessary parts have been supplied. Order confirmations on the part of the customer shall only become effective or de facto executed upon written counterconfirmation. Reasonable implementation times are promised. These shall be extended accordingly in the event of delays in the delivery of hardware and software by third parties. Promises of completion dates do not constitute a firm deal unless this is agreed under this heading. Small materials required for the execution of the order, such as cables, data carriers, components, shall be deemed to have been automatically ordered up to an amount of 5% of the order total. Accepted orders are not an obligation for the contractor to accept further follow-up orders. Any costs for an extensive detailed analysis are to be paid by the customer.
3. remuneration and performance:
3.1. In the absence of any other agreement, the Contractor’s hourly rates valid at the time, as published in particular on the Contractor’s website, shall apply. Services outside office hours (Mon-Fri: 9.00-17.00) are to be paid for with a surcharge of 50%.
3.2. The contractor owes the effort of the order fulfillment according to average expertise, but not the success. The fee shall also be paid if the Contractor is ultimately unable to solve a specific technical problem, unless a fault analysis has been commissioned in advance and the Contractor has agreed in writing to provide a solution after the result is available. Furthermore, no commitment can be made in advance as to the specific duration of the performance of an order, unless expressly agreed. The customer must reimburse appropriate expenses, not only necessary ones.
3.3. Telephone inquiries for the solution of technical tasks shall be deemed to be an order even without a written order and shall be charged in accordance with the respective current fees.
3.4. Written documentation must be explicitly commissioned.
3.5. The decision on the type of execution of an order is at the discretion of the contractor and cannot be objected to by the customer afterwards, unless the customer specifies a certain procedure in advance. A reduction of the charged fee is therefore excluded.
3.6. The Contractor cannot guarantee the success of services for those software/hardware versions that do not correspond to the current version status or the manufacturer no longer generally offers support for this version.
4. Response and completion time:
4.1. Support is provided according to availability. The Contractor shall not make any promises of its readiness without a separate maintenance agreement in which special availability is expressly promised.
4.2. Since the occurrence of a success is not guaranteed in principle, no times for the completion of inquiries (= completion time) are guaranteed by the contractor, unless otherwise agreed. However, the contractor assures the effort to settle all inquiries as soon as possible.
4.3. In the event that the Contractor guarantees the success of a service (in particular the installation of software or the delivery of hardware), the Contractor assures a reasonable completion time, taking into account any order times. If no completion time has been agreed upon, a reasonable period of time – at least 2 weeks – shall be deemed to have been agreed upon. If the Contractor has not achieved the agreed success within the completion period, the Customer shall again request the Contractor in writing to achieve the desired success within 14 days.
4.4. The Contractor shall only compensate the Customer for the damage incurred due to a delay in a performance aimed at success if the Contractor is primarily at fault for the delay, the Customer – as described under 3.3 – has again requested the Contractor in writing to provide the performance and the Contractor has not provided its performance despite this and has not given any reasons for the delay that would have discharged the debt.
5. Cooperation by the customer:
5.1. The customer has to nominate a contact person. Information provided by the latter as well as commitments, decisions and agreements with the latter shall be binding on the customer.
5.2. The customer has to accept the completion of the work, if necessary he has to pay for the costs of a separate work. The customer shall also carry out tests if the contractor so wishes. The Customer shall allow the Contractor to inspect goods and software subject to complaint on the Customer’s own premises.
5.3. The Customer shall provide the Contractor with all documentation of the software on the part of the manufacturer and documentation of individual programming as well as configurations without being requested to do so. The information must correspond to the operational circumstances. This also applies to all access data and necessary passwords and network addresses or comparable information.
5.4. Waiting times and unsuccessful call attempts are at the expense of the customer. If the Customer does not comply with his obligations to cooperate despite the setting of a grace period, the Contractor may refrain from providing the service and the Customer shall compensate the Contractor for the expenses incurred to date.
5.5. The Customer shall provide the Contractor with sufficient office and storage space as well as employees (e.g. for test positions) to carry out the work if the Contractor so wishes.
6. Retention of title and transfer of risk:
6.1. Software and hardware shall remain the property of the Contractor until full payment of the total order and shall be surrendered to the Contractor upon request if agreed payments are not made. Deliveries are made at the customer’s own risk and expense. Insurance wishes are to be agreed separately. As soon as goods are on the customer’s premises, the customer shall in any case bear the risk of damage and accidental destruction or loss and theft.
7. Hiring of subcontractors:
7.1. Promises to take over the maintenance of computer networks shall not be understood as a promise to perform all conceivable work, in particular concerning all possible software and hardware. If the Contractor does not have the relevant expertise, the Customer must call in other experts at its own expense. Recommendations from other companies shall not be understood to mean that they are to become vicarious agents of the Contractor or that the Contractor is liable for any fault in the selection.
7.2. The Contractor shall be liable for subcontractors engaged with the Customer’s consent only for the fault of selection. The attribution of vicarious liability pursuant to § 1313a AGBG does not apply.
8. Warranty and guarantee on sold hardware and software:
8.1 Warranty and guarantee claims for hardware and software shall be settled with the product manufacturer or the supplier of the Contractor. Already at the time of acceptance of the order, the Contractor shall transfer any own recourse claims against the manufacturer or supplier to the Customer (without any commitment as to their value) and shall then act on the Customer’s behalf.
8.2. In this context, the Contractor neither guarantees the existence nor a successful assertion of recourse claims in any way. The Contractor shall act on behalf of the Customer for the assertion of any recourse claims, whereby the Contractor shall be appropriately remunerated for the expenses incurred thereby.
8.3. If defects occur due to the hardware or software delivered by the Contractor, the Customer shall document these defects – as far as reasonable – and notify the Contractor in writing within 3 working days after delivery, otherwise the Customer may no longer assert any claims against the Contractor due to these defects.
8.4. If the customer is entitled to claims against the contractor on the basis of hardware and software sold under the legal institution of warranty (assertion of material defects and defects of title), these shall become statute-barred within 4 months.
9. obligation to give notice of defects for services:
9.1. After completion of the service or an independent part of the order, the customer must give notice of any defect within 7 days of its occurrence and document it as far as possible and reasonable, otherwise any claim for damages or warranty shall be forfeited. Compensation and warranty are excluded for defects which are asserted 6 months after completion of the work or the independent part of the order.
9.2. All services rendered shall automatically be deemed to have been accepted unless any defects occurring are reported to the Contractor no later than one week after completion.
10. Limitation of liability and loss of data:
10.1. The contractor assumes no liability for loss of data. All data must be backed up by the customer prior to the start of the work. The customer must back up his data at least once a day at regular intervals and have an appropriate backup concept. The contractor assumes no liability for the permanent, error-free functioning of the EDP system. This also applies to new hardware and software, provided that basic function tests have been carried out without errors. The Contractor shall only be liable for careful procedures in the provision of services, but shall not be liable for newly acquired and used hardware and software components, unless these were acquired on its advice and are unsuitable.
10.2. Any liability for slight negligence is excluded in its entirety; any liability for consequential damage, loss of profit and mere pecuniary loss is excluded. Penalty payments by the Customer shall only be reimbursed to the Customer and to the extent that the Contractor itself enters into a penalty obligation vis-à-vis the Customer in writing.
10.3. Likewise, liability on the part of the contractor for gross negligence is excluded. The Contractor shall therefore only be liable for damage that is attributable to intentional or grossly negligent conduct on the part of the Contractor that is so blatant that it can be equated with intentional conduct. It shall be incumbent on the Customer to state and prove the conduct of the Contractor during the provision of services which has led to damage. The contractor also does not have to prove that he was not grossly negligent. The contractor shall only be liable for damages resulting from gross negligence up to a maximum amount of EUR 5,000.00.
10.4. Claims for damages by the Customer against the Contractor shall become statute-barred within 6 months of knowledge of the damage and the damaging party.
10.5. The Customer shall inform the Contractor if the Contractor’s activities may cause direct personal injury to the Customer’s IT equipment. The customer must take the necessary precautions to prevent this.
10.6. During the performance of work, the customer shall take the possible operational standstill, but also damage and consequential damage, if the IT system on which work is being performed continues to be in operation, at his own risk. The Contractor shall not be liable for any damage incurred by the Customer as a result of a shutdown, nor for any loss of data occurring during or in particular as a result of the work carried out by the Contractor.
10.8 When commissioning the installation of monitoring systems, the Customer shall indemnify and hold harmless the Contractor with regard to claims under data protection law or other claims.
11.1. Any deviation from the General Terms and Conditions for an individual order must be made in writing. Special warranty or guarantee commitments must be made in writing.
12. Data protection:
12.1. The contractor can assume that the customer has sufficient technical data protection and that his data processing also complies with the law. The permissibility of the transfer of personal data to the Contractor as well as the processing of such data by the Contractor shall be ensured by the Customer. In the absence of an express order, the Contractor shall have no duty to investigate, no duty to warn and no duty to clarify.
12.2. The contractor manages data, passwords and domains of the customer. However, no liability is assumed for third parties overcoming security measures and/or causing damage despite appropriate protection. If, notwithstanding these measures, the customer or a third party suffers damage in the course of the data managed by the contractor, the customer shall indemnify and hold the contractor harmless in such a case.
12.3. If special protection is required for the safekeeping of this data, the customer must inform us of this.
12.4. The Customer gives the Contractor permission to forward the data provided by the Customer to subcontractors commissioned by the Contractor for the provision of services.
13. E-Mail advertising delivery:
13.1. The Customer expressly agrees to the sending of advertising e-mails by the Contractor itself for the purposes of its business and has been informed of its right to prohibit such sending from the outset and to be able to revoke this consent at any time. Emails will only be sent for advertising purposes of the contractor (area of sale and resale of software/hardware and EDP services as well as similar business areas) and at the longest until the third calendar year after the calendar year of the last order termination, provided that the customer data may not still be stored for other reasons in the customer data processing.
14. Software and updates, copyright:
14.1. The customer undertakes that he will only use licensed software for use in his company. The contractor does not have to make any special inquiries and can assume that the customer will provide him with truthful and complete information and that his orders will not lead to copyright infringement. Should the installation or use of programs lead to an infringement of copyright, the customer must inform the contractor immediately. In the event of an infringement of copyright, the customer shall indemnify and hold the contractor harmless.
14.2. In the course of IT support, the contractor installs updates and software from the manufacturer into the customer’s system. The contractor assumes no liability for complications or damages resulting from the installation of these updates or the new software installed in the system. The Contractor shall generally not assume any liability for software or updates installed at the Customer’s request.
15. Payment Terms & Value Protection:
15.1. All payments are to be made within 14 working days of receipt of the invoice without deductions. A set-off with counterclaims not expressly acknowledged in writing or admitted by a court of law is excluded. Furthermore, the customer waives his right of retention due to damage repair. Interest on arrears of 8% above the base rate of the ECB, at least 10% p.a., charged for each calendar day for the outstanding capital, shall be deemed to have been agreed. Interest is paid quarterly on 31.3, 30.6, 30.9. and 31.12. capitalized. Any payment made by the Client shall be credited against the oldest outstanding debt (capital or costs), irrespective of any dedication, unless the Contractor declares otherwise within 7 working days of receipt of payment. The Contractor may at any time submit partial invoices for the services already rendered and demand full advance payment for hardware and software orders. The customer shall bear all fees, customs and import duties and import surcharges arising from the order, even if these are not already expressly stated in the offer. Employees of the contractor are not authorized to collect payments. In case of incorrect or improper order placement, the customer shall nevertheless be obliged to pay the full fee. The costs of payment reminders, reminder charges and for the collection of the claim shall be borne by the customer.
15.2. Agreed prices are value-assured on the basis of the consumer price index (CPI), which is continuously published by Statistics Austria.
16.1. In the event that bankruptcy or composition proceedings are instituted against the Customer or such proceedings are dismissed for lack of assets, the Contractor shall be entitled to terminate the current order in respect of the outstanding services in any event.
17.1All notices shall be sent by post, fax or email (office address) and shall be deemed to have been received on the same day if received more than one hour before office closing time; otherwise they shall be deemed to have been received on the next working day.
18. For all points not explicitly regulated in these GTC, the GTC of the Chamber of Commerce, UBIT Section shall automatically apply.
19. Jurisdiction and applicable law:
19.1. The place of performance is the registered office of the contractor. All disputes arising from the contractual relationship shall be subject to the exclusive jurisdiction of the court having jurisdiction in commercial matters at the Contractor’s registered office. Austrian law shall apply exclusively without further reference to other legal systems. The UN Convention on Contracts for the International Sale of Goods is excluded.
20. Final provisions:
20.1. Any deviation from the provisions of these GTCs must be made in writing. This shall also apply to any waiver of this written form requirement.
20.2. The Contractor reserves the right to amend the General Terms and Conditions at any time. Changes apply to all future orders. If the latest version of the GTC has not been validly agreed, the last validly agreed version shall apply in any case. Otherwise, the present General Terms and Conditions shall apply to all future orders placed with the order taker.
20.3. Should individual contractual provisions of these GTCs – for whatever reason – become legally ineffective or invalid in whole or in part, this shall not affect the legal effectiveness of the remaining provisions. The legally ineffective or invalid provision shall be supplemented by way of interpretation by the valid provision which most closely achieves the intended economic and legal effects of the legally ineffective or invalid provision and meets the overall purpose of these GTCs.
TECHWAVE GmbH, Company Register: No. FN 408464 h of the Commercial Court of Vienna