GENERAL TERMS AND CONDITIONS

 

1. Scope of Application

• These General Terms and Conditions (hereinafter referred to as “GTC“) form an intergral part of the software development contract and/or consulting contract (hereinafter referred to jointly as “contract“) between you, (hereinafter referred to as “Client“) and sdbs GmbH (hereinafter referred to as “sdbs“), Stranzenberggasse 7B/1/8, 1130 Vienna, Austria, Commercial Register Number: FN 480873 t. sdbs specialises in the development of database solutions and automation processes in the area of databases (hereinafter referred to as “product“). Additionally, consulting and support services is also offered within this context.

• All other deliveries, services and offers by sdbs shall be rendered exclusively in accordance with these GTCs. Changes and additions to these GTCs, as well as any conflicting or supplementary conditions – in particular, general terms and conditions of the Client – shall not be acknowledged by sdbs, unless sdbs provides an explicit written confirmation. These General Terms and Conditions shall also apply to any future contractual relationships, even when these General Terms and Conditions are not expressly referred to in collateral contracts.

• Changes and additions to these GTCs, as well as any conflicting or supplementary conditions – in particular, general terms and conditions of the Client – shall not be acknowledged by sdbs, unless sdbs provides an explicit written confirmation.

• sdbs provides no permission history.

 

2. Description of Services and Scope of Services

• The product corresponds to the description in the agreement. sdbs must not be held liable for any features beyond this description. All information contained in catalogues, brochures, product descriptions, advertising statements and the like, including on the online information platform, and any other written or oral statements, shall only be relevant and subject of the contract, if the agreement expressly states that they form part of the contract content. Warranties shall require explicit written confirmation by the management of sdbs. On no account, such specifications underwrite any assurances of features.

• The Client shall, also upon request, receive a free trial version for a limited period, that can be accessed through transmission of access data. In this case, the Client expressly agrees to the GTCs of sdbs, shall be subject to its provisions and declares knowledge of them. Additionally, the Client also, on first use of the trial version, shall declare their full agreement – which can be obtained orally or in writing before the delivery of the trial version through a person designated by the Client – with the individually accessible functions description. The Client shall not be entitled to assert any claims whatsoever against sdbs from the use of the trial version, and shall always indemnify and keep sdbs free of complaint through their culpable conduct. If the Client has not reported any defects to sdbs within thirty (30) calendar days of delivery date, the trial version is deemed to have been accepted and the contract fulfilled.

 

3. Contract Initiation and Contract Conclusion

• All offers by sdbs are without obligation. The placing of a related order by the Client shall only constitute a contractual offer of the Client. A contract shall only take effect if sdbs accepts the Client’s offer by means of a written order confirmation, or with the actual service delivery.

• Contract items, presentation documents, concepts, demo programs etc. are the intellectual property of sdbs and may not be reproduced or made available to third parties. If a contract is not entered into, they must be reset or deleted and may not be used in any way whatsoever.

 

4. Acceptance

• The Client shall not be entitled to refuse delivery of the product ordered due to insignificant defects. In the event of substantial defects, sdbs shall correct them within a reasonable period of time corresponding to the extent of the fault. Following notification of the fault having been remedied, the Client shall retest the product within five (5) business days.

• If the Client has not returned the product within thirty (30) business days of delivery date, the delivery is deemed to have been accepted by the Client.

 

5. Right of Use

• The Client may use software products by sdbs, including any documentation, solely on the basis of the contractually agreed terms of use.

• Through the granting of the product by sdbs, the Client shall obtain a personal, non-exclusive, non-transferable right of use of the product. The transfer point for the software services is the router output of the data centre for the internet used by sdbs.

• If sdbs has not given its explicit consent for this, the Client shall not be entitled to reproduce the product, to distribute it, to lease it, to loan it out, or to make it available, or otherwise to share it with third parties, or to share access data with third parties.

• The provision of technical program documentation of any kind is not obligatory and shall form no part of the agreement, unless agreed in writing.

• The Client shall treat as confidential all information about the product, including information about the methods and procedures applied. The Client undertakes to protect the product and documentation provided from being disclosed to, or used by, third parties. The Client further undertakes not to use any parts of the product or proprietory procedures or any ideas thereof directly or indirectly to create their own software.

• sdbs shall be entitled to use parts or the whole product for the development of future promotional material or for product development, and shall ensure that no confidential information of the Client will be passed on to third parties, pursuant to item 12 of this GTC.

• sdbs shall be entitled to all exclusive rights, in particular, copyrights to the product provided, as well as to the documentation provided, insofar as this is not expressly stated to the contrary.

• sdbs’s product and service are being continually developed. This includes the optimisation of the product, adaptations in line with technical progress and considerations of the basis for comparisons. Within the context of the product’s continual development, functions may change or be omitted, if this will ensure the fulfillment of the contractual purpose for the Client. In further developing an existing application, sdbs is only responsible for the current / last version, that should be used by all of the Client’s Older versions are not maintained by sdbs, unless otherwise agreed.

• sdbs would like to point out that Clients shall be liable for all damages arising from copyright infringements for which they are responsible.

 

6. Prices and Payment Terms

• All prices stated are net prices and exclusive of statutory VAT. Unless otherwise stated in the contract, sdbs considers itself bound by the prices for four (4) weeks.

• The Client may only offset or withhold due sums in cases where the Client’s claims were either acknowledged by sdbs in writing or conclusively confirmed by a court. Unless otherwise agreed, any payments made by the Client are non-refundable.

• The statutory default interest rates apply. All taxes and duties are to be paid by the Client.

• With regard to incidental travel, additional travel expenses will be charged. Travel costs are calculated at the discretion of sdbs, based either on the amount of the official rate per kilometre, or proof of the actual costs incurred (e.g. hotel, train ticket).

• Invoicing for the granted rights of use shall be made thirty (30) calendar days following the start of the contract, or annually following commencement of the extended contract term, unless otherwise agreed in the contract.

• Invoices are payable without deduction within twenty (20) days of the invoice date. In the event of a default in payment, sdbs reserves the right to assign claims against the Client to factoring companies, or to sell or pass on to collection agencies. The associated costs, in particular reminder and collection fees, shall be borne by the Client.

• A payment is deemed to have been effected on the date at which the amount in question is at sdbs’s

• If payment terms are not complied with, or sbds becomes aware of circumstances that are appropriate for reducing the Client‘s creditworthiness, all amounts shall become due with immediate efffect. sdbs shall then be entitled to carry out any pending deliveries or other contractual services only against cash in advance, and to withdraw from the contract and assert claims for compensation, following a period of grace.

• sdbs reserves the right, following contract conclusion, to offset prices, to adjust them according to the price index, and to invoice them. The increase shall arise from the difference between the current consumer price index at the time of the charge minus the consumer price index at the time of the signing of the contract. The applied consumer price index refers to the published consumer price index (VPI) 2015 of the Austrian Statistical Office, available on its website.

 

7. Data collection

• With regard to personal data, sdbs shall comply with the regulations of the data protection legislation. sdbs shall treat the Client‘s personal data as confidential and not disclose it to third parties outside the company, except for to authorised subcontractors.

• The Client expressly agrees to sdbs processing their personal data and that of their defined users, employees and clients, insofar as this is necessary a) for sdbs to fulfil its services (invoicing, support or other services); or b) for the purposes of customer registration; or c) for setting up test systems; or d) for analysis of such data for statistical purposes; or e) for the improvement of sdbs’s products, support or other services provided under this contract.

• The Client hereby agrees that using the product is considered an order processing of their personal data and, where applicable, that of their clients. The Client shall bear sole responsibility for the lawfulness of the processing of the personal data and for the safeguarding of the rights of data subjects.

• sdbs shall be authorised to hire subcontractors for the processing of personal data. sdbs shall assign all its obligations, as order processor and in accordance with the specifications in this document, towards the Client to the subcontractor and oblige them to comply with all relevant data protection provisions.

 

8. Warranty

• sdbs shall make every effort, through quality assurance measures, to produce software products that are extensively free of defects. sdbs does, however, point out that it is not possible, based on the current state of technology, to produce a completely faultless product. In particular, sdbs shall not be held liable for any content and results generated through use of the product, or for any loss of data.

• sdbs guarantees that the product has the agreed quality at the time it was made available and that, at the time of the assigning to the Client of the agreed right of use, there were no conflicts in violation of the rights of third parties. No warranty claims can be derived from information in catalogues, brochures, product descriptions, advertising materials and any other written or oral statements that have not been explicitly stated in the contract.

• In the event of a defect, sdbs shall firstly, carry out an improvement by way of, at its own discretion, a new, faultless delivery/service or by remedying the defect. Defects may also be remedied through providing the Client with an appropriate workaround that prevents a future recurrence of the problem. The Client shall support sdbs accordingly.

• The Client must report all defects to sdbs in writing with immediate effect and, in doing so, provide a detailed description of the defect or, if this is not possible, give details of the symptoms of the problem, as well as provide all information which the Client has at their disposal that could prove useful in remedying the defect. The Client shall be obliged, pursuant to §§ 377, 378 of the Austrian Commercial Code (UGB) and pertaining to all deliveries and services of sdbs, to inspect and give notice of any defects.

• The statutory period of limitation for these claims for defects is six (6) months after the first use. Claims pursuant to § 933b of the Austrian Civil Code (ABGB) also fall under the statute of limitations after six (6) months.

• All other claims by the Client shall be excluded.

• sdbs may invoice the Client for any additional costs if sdbs has carried out debugging and troubleshooting services a) without having detected the alleged defect; or b) because a fault is the result of the Client’s not having duly fulfilled their cooperation commitments; or c) if the Client used the product incorrectly.

• Notwithstanding any contrary provisions in this contract, the Client must not be entitled to any claims where the defects are based on the fact that the product (i) was used by the Client contrary to the provisions under the agreement or other documents; (ii) was neglected, abused or handled incorrectly, including improper installation, operation, use, maintenance or testing by the Client; (iii) was employed by the Client in application areas or environmental conditions not included in those expressly laid down by sdbs; (iv) was used by the Client together with other products, tools, software or data that were not delivered or approved by sdbs; or (v) were modified by the Client or a third party, albeit negligently.

• The Client may only demand a conversion or reduction in payment to the extent that the (where applicable, repeated) improvement in the defect ultimately fails, despite a written subsequent period of grace of at least (30) days. Any reimbursement of expenses demanded by the Client themselves or a third party (substitute performance) for rectification of the defects is excluded. However, in the event of a minor breach of contract, in particular, in the event of only slight defects, the Client shall have no right of withdrawal (conversion rights).

• Compensation beyond this is entirely excluded in the event of slight negligence.

 

9. Liability

• In all cases of contractual and non-contractual liability, sdbs shall only pay compensation in the event of intent, blatant gross negligence, and for defects in the quality, for which sdbs has given a guarantee. Here, the Client must bear the burden of proof that sdbs acted intentionally or in a blatantly gross negligent manner. sdbs’s liability for all claims by the Client must, regardless of the legal basis, be limited to the contract value per claim in connection with the contract. sdbs must not be held liable in any way for lost profits, unrealised savings, damages resulting from claims by third parties against the Client, indirect damages and consequential damages, as well as for any damage to recorded data. The limitation of liability must not apply to personal injury.

• A limitation period of one (1) year shall apply for all claims against sdbs for damages, or for reimbursement of expenses incurred pertaining to contractual and non-contractual liability. This does not apply to liability pertaining to intent, blatant gross negligence or personal injury. The period of limitation starts after the damage and the liable party have become known.

• The above limitations of liability shall also apply to claims against employees, subcontractors or other authorised representatives of sdbs.

 

10. Offsetting

• An offsetting of any claims against sdbs, to which the Client is entitled, shall be excluded, unless the claims are not disputed by sdbs, or they have been legally established.

 

11. Client Obligations

• The Client undertakes to provide all contractually relevant information. However, sdbs is not obliged to check that this is correct or complete. Additional work, for which the Client is responsible, resulting from incorrect or incomplete information, shall not be charged to sdbs, and will be invoiced separately to the Client, at the respective applicable hourly rates.

 

12. Secrecy and Confidentiality

• Both parties undertake to hold in strict confidence all of each other’s confidential information and trade secrets, which were acquired in connection with the fulfillment of the contract and which are specifically marked as confidential or protected; or from which it must be assumed, based on the circumstances of the disclosure or the nature, that it is confidential or protected (“confidential information“). The confidential information of sdbs includes, in particular, the product developed and its associated coding.

• Both parties undertake to hold in strict confidence all of each other‘s confidential information, although, the recipient shall be entitled to disclose confidential information to employees and third parties, as far as this is necessary for rights of use and fulfilling the obligations under the contract. Both parties shall also ensure that all employees and third parties, who are provided with confidential information for the purposes of fulfilling the contract, are also bound by the same or similar confidentiality obligations.

• sdbs shall carefully store the Client’s confidential information.

• Excluded from the obligation to secrecy is information which is demonstrably already accessible to the public, or which was made known to a contractual party by non-participating third parties, without breaching item 12.

• The obligation to secrecy shall lapse when the other party has given their express prior written consent to the disclosure, as well as in those cases where a party is required to do so due to mandatory statutory provisions.

 

13. Termination

• A software development contract or consulting contract may be cancelled by either contractual party, in accordance with the period of notice stipulated in the respective contract.

• The right of parties to terminate the contract for compelling reasons shall remain unaffected. In particular, any persistent and substantial infringement of a party against the provisions of the contract, shall be regarded as an important reason, provided that, despite a prior written request by the contractual party giving notice, to the other party to reestablish the conditions under the contract, the other party fails to take action within an appropriate period. Also regarded as an important reason (without the requirement of a subsequent period of grace) is the initiation of bankruptcy proceedings or composite proceedings against a contractual party, or the dismissal of such proceedings due to insufficient assets.

 

14. Intellectual Property Rights

• Unless explicitly otherwise agreed in writing, sdbs shall not assign any intellectual property rights or claims to the product to the Client or third parties. All claims and rights to the product, to deliveries, to work results, to technical know-how and related trade secrets, in particular, copyrights, rights to inventions, as well as other industrial property rights, shall be held exclusively by sdbs. Included in this are specifically rights to all works that originate from sdbs or its authorised representatives or subcontractors, on the basis of specifications, or in cooperation with the Client.

• The Client may not remove any notes and data from the product pertaining to copyrights, trademark rights, patent rights and other intellectual property rights. Where not specifically otherwise agreed, all patent rights, copyrights, trademark rights and other rights to the product, as well as optimisations, design contributions or other derivative works, shall remain the exclusive property of sdbs. All claims and rights to the product, to technical know-how and to related trade secrets, in particular, copyrights, rights to inventions, as well as other industrial property rights shall be held exclusively by sdbs. This includes, in particular, rights to all works originating from sdbs or its authorised representatives or subcontractors, on the basis of specifications or in cooperation with sdbs.

• Clients are not entitled to translate, decompile, reverse engineer or otherwise modify the product without the express consent of sdbs.

• The Client shall not undertake measures of any kind that would affect the sale, awarding or use of the product.

 

15. Service Agreements

• In addition to the product delivery, also maintenance, consulting and support services may be agreed (hereinafter referred to as “Service Agreement“).

• If a service agreement exists, this shall always only include the version available.

 

16. Services

• Services that do not encompass the specific service descriptions in the contracts, are to be agreed separately. In this respect, the hourly rates stated in the contracts shall apply.

• The Client shall comply with the obligation to cooperate and the obligation of protection for the provision of services.

• Where works are created from services (e.g. during programming activities), the Client shall obtain a basic right of use. Any rights beyond this shall be excluded.

 

17. Final Provisions

• If, sdbs, for any reason does not assert any rights or claims in accordance with these GTCs, or subject to these contracts, this shall not constitute a waivering of these rights or claims.

• For all legal disputes arising from this contract, as well as any agreements in connection with this contract, the exclusive jurisdiction of the respective competent court is located in the inner city of Vienna, Austria.

• This contract is governed exclusively by Austrian law to the exclusion of national and international conflict of laws, as well as to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

• Oral subsidiary agreements have not been concluded and would be void. Any changes or supplements to this contract shall require the written form; the same shall apply to any deviation from this written form requirement.

• All fees, charges or taxes arising from the establishment of a software licensing or service agreement subject to these conditions shall be borne by the Customer.

• Should any provision of this contract be or become invalid or void, the other provisions of this contract shall remain unaffected. The void or invalid provision shall then be replaced by a provision which as closely as possible resembles in objective and purpose the invalid or void provision. The same shall apply accordingly in the event of unintentional ommissions in the contract.