Terms and Conditions (GTC)

I. Scope and offer

For all our sales offers, deliveries and services, the following terms and conditions apply exclusively to our business partners. They shall also apply to future business relations with the customer, even if no express reference is made to them upon conclusion.

We do not recognise any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Counter-confirmations of the customer with reference to his conditions are hereby expressly contradicted. The use of the services provided by us implies the implied acceptance of these General Terms and Conditions. Our offers are non-binding.

II. Prices

Unless otherwise stated, our prices shall apply ex works or ex place of business net (without value added tax) without any deduction. Packaging and transport costs, customs and insurance fees as well as any other kind of manipulation fees etc. will be invoiced separately. Orders for which fixed prices have not been expressly agreed shall be invoiced at the list prices valid on the day of delivery. All prices are subject to statutory value added tax. It will be shown separately in the invoice at the statutory rate on the day of invoicing.

III. Delivery time

The beginning of the delivery time specified by us requires the clarification of all technical questions. If a delivery is delayed because the customer did not cooperate with us or if we are handicapped for other reasons without fault, the delivery and service periods are extended by the duration of the hindrance plus a reasonable start-up period.
Delivery delays and cost increases caused by incomplete, incorrect or subsequently changed information of the customer or of documents made available to us are not our responsibility and shall not be considered as delay. The additional costs incurred by the customer are borne by the customer. The customer must issue reminders and set deadlines in writing.

IV. Execution of delivery and transfer of risk

We are entitled to make partial deliveries and to issue partial invoices unless a uniform contractual object is owed. If a delivery item is sent to the customer at the customer’s request, the risk shall pass to the customer upon delivery to the shipping agent, but at the latest upon leaving the factory or warehouse, irrespective of whether the shipment is made from the place of performance and who bears the freight costs. If the delivery item is ready for dispatch and if dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of written notification of readiness for dispatch. In addition, the customer shall bear the costs of any storage.

In the case of delivery with installation and assembly, the transfer of risk shall take place on the day of acceptance in the own works or – if a trial run has been agreed and carried out immediately after installation ready for operation – after faultless trial run. If dispatch or delivery is delayed at the customer’s instigation and the customer is responsible for this, the risk shall pass to the customer on the day of readiness for dispatch. Moreover, the customer the costs of any storage.

Only at the customer’s request shall we be obliged to insure the delivery item against damage. The costs shall be borne by the customer.

V. Scope of the delivery item

Our written order confirmation is decisive for the scope of delivery. Specifications, illustrations, drawings, etc. from catalogues or offers are only to be regarded as approximately binding unless they are expressly designated as binding. In particular representations in the manual, in test programs, in product and project descriptions are not warranted characteristics, unless they are expressly agreed as such. We reserve all proprietary rights and copyrights in such documents.

We do not owe any functionality of the programs or other delivery items beyond that described in the descriptions in the manual, in test programs, in product and project descriptions. Insofar as the delivery item is standard software, this shall be owed in the version current at the time of delivery, unless expressly agreed otherwise in writing. Changes resulting from the current state of the art or whose implementation is in the interest of the customer may be made by us. Subsequent changes made at the customer’s request will be invoiced separately.

We are not obliged to explain to the customer all technical application possibilities of the delivery item. We are not obliged to draw the customer’s attention to possible functional features of the delivery item.

VI. Cooperation of the customer

The customer supports ITCONS Business Solutions GmbH comprehensively and free of charge in fulfilling the order, in particular by creating the operational prerequisites for the provision of services, by providing employees, workspaces, hardware and software, data and telecommunications equipment and by participating in specifications, tests, acceptances, etc. The customer shall be responsible for the entire order fulfilment process.

It grants ITCONS Business Solutions GmbH provides access to hardware and software and enables access to software by means of remote data transmission, unless there are substantial reasons to the contrary. The customer shall ensure that the necessary rights of use for the corresponding use of the software are available.

In order to ensure a proper expiration of the contract, the customer appoints a contact person who has decision-making power or who brings about decisions without delay. Before using the software, the customer tests each program or program part for freedom from defects and usability in everyday use.

VII. Use of the delivery item

If the delivery item is software, we shall be entitled to all copyrights in all documents, programs, test programs, product and project descriptions provided to the customer, unless otherwise stipulated in these terms and conditions.

The purchase of a program entitles the customer to use it at only one screen space (single-user application). If the screen space is integrated into a local network, a single-user application is only available if it is technically ensured that the program cannot be called from another screen space. If the program is to be transferred to the server of a network, the customer is obliged to purchase a program copy for each connected network station.

The customer is prohibited from reproducing a program permanently or temporarily in whole or in part without our consent. Furthermore, the customer may not translate, edit, arrange or otherwise modify the program without our consent. Any form of distribution of the original of a programme or a reproduction piece shall be subject to our consent. However, the customer is entitled to make a data backup and to make the backup copies necessary for securing future use. Backup copies on a movable data carrier shall be marked as such.

Unless expressly agreed otherwise, the customer is prohibited from passing on to third parties without our written consent any organisational work, programmes, performance descriptions or copies derived therefrom, whether in return for payment or free of charge. Unless expressly agreed otherwise, the customer’s right of use shall apply exclusively for the customer’s own purposes.

A passing on, also in the course of a dissolution or sale of the enterprise or in the case of bankruptcy, as well as the short-term passing on to third parties for the production of reproductions, draws claims for damages, whereby the customer must provide full satisfaction.

The Customer’s authority to use a Program shall commence upon receipt of the Delivery following the Order. If the customer does not receive a program directly on the basis of the original order, but only later, such as in the case of a subsequent delivery in the course of warranty, the customer acquires the rights of use after the storage of the relevant program on the hard disk. As soon as the program delivered later is used productively, the customer’s rights of use with regard to the replaced program expire.

If the customer’s right of use ends, he must return all delivery items and copies to us. Furthermore, the customer is obliged to delete stored programs. The customer must assure us in writing that the above obligations have been fulfilled.

IX. Warranty and Liability

The warranty rights of the customer presuppose that the customer has duly complied with his statutory duty to inspect and give notice of defects pursuant to § 377 HGB (German Commercial Code). Unless otherwise agreed, we shall initially only provide warranty in such a way that we are entitled to choose between remedying the defect or delivering a replacement. In the event that the defect is remedied, we shall be obliged to bear all expenses required for the purpose of remedying the defect, in particular transport, travel, labour and material costs, insofar as these are not met by the delivery item being taken to a place other than the place of performance. We support the customer in the search for an error and/or the cause of the error. If we are not demonstrably responsible for the defect, we shall invoice the customer for the resulting expenses. If we are not prepared or unable to remedy the defect or make a replacement delivery, or if this is delayed beyond a reasonable period for reasons for which we are responsible, or if it fails in any other way, the customer shall be entitled, at his option, to demand rescission (rescission of the contract) or reduction (a corresponding reduction in the purchase price).

Our warranty obligation shall lapse if the customer carries out improvement, repair or repair measures or has them carried out by third parties without our prior written notification and setting a deadline. This does not apply to measures taken on the delivery item by a competent person to determine the cause of the fault or to determine whether the defect was already present before the transfer of risk. Furthermore, we do not assume any warranty for damages caused by natural wear and tear of the delivery item.

The customer also has no warranty claim for transport damage and damage caused by improper or unsuitable handling, excessive stress, unsuitable operating materials and electrical influences, which after the contract are not required.

The warranty period shall be 6 months from delivery, unless otherwise expressly agreed or unless otherwise specified in these terms and conditions or unless a longer period is prescribed by law.

ITCONS Business Solutions GmbH pays compensation only in case of intent or gross negligence. The liability of ITCONS Business Solutions GmbH for all claims of the client is independent of the legal basis, as far as legally permissible, limited with the amount of the total order from/in connection with the contract or the legally regulated, maximum liability limit of the GmbH. As far as legally permissible, ITCONS Business Solutions GmbH assumes no liability for lost profit, expected, but not occurred savings, damages from claims of third parties against the client, indirect damages and consequential damages, interest losses as well as for damages to recorded data.

X. Terms of payment

Our invoices are due 10 days from the date of invoicing and must be paid without deduction. If deviating payment periods are agreed, the payment period shall also begin to run from the date of the invoice. We are entitled to offset payments made by the customer first against the customer’s older debts and inform the customer of the type of offsetting that has taken place. If costs and interest have already been incurred, we shall be entitled to offset the customer’s payment first against the costs, then against the interest and finally against the principal debt. Bills of exchange will only be accepted on the basis of a special agreement and only on account of payment.

For the timeliness of the payment it depends on the receipt of money by us, in the case of payment by cheque or bill of exchange on the date of unconditional redemption. We shall be entitled to charge interest on arrears at the rate of 12 % p. a. .

If we become aware of circumstances which cast doubt on the creditworthiness of the customer, for example if a cheque is not honoured or the customer ceases payments, we shall be entitled to demand payment of the entire remaining debt if the customer is already in default. In this case, we shall also be entitled to carry out outstanding deliveries and services only against advance payment or securities or to demand securities for outstanding payments.

The customer may only set off such claims which are undisputed or have been legally established.
Likewise, the customer may only assert the retention of payments if the customer’s counterclaim is based on the same legal relationship.

In the event of default in payment, the customer undertakes to pay all dunning and collection costs in accordance with the Regulation of the Federal Ministry of Economic Affairs in respect of the fees of collection agencies, BGBl. Nr. 141/1996.

XI. Secrecy

The information submitted to us by the customer will be treated confidentially. We are entitled, in compliance with the Data Protection Act, to store and use the customer’s data for our own purposes in a legally permissible manner.

The customer undertakes to carefully store contract documents handed over to him as well as any other documents, documentations and source programs handed over to him in order to prevent misuse.

XII. Rights of withdrawal

If the customer is in default with the performance incumbent upon him, we may set the customer a reasonable period of grace to effect the performance, stating that we will refuse acceptance of the performance after expiry of the period. After expiry of this period, we may refuse performance of the contract, withdraw from the contract or claim damages.

In the event of unforeseen hindrances, such as force majeure, major operational disruptions, the occurrence of rejects in delivery items and the absence of supplies, which substantially change the economic significance or the content of our performance or have a considerable effect on our business and in the event of subsequent impossibility of performance, the contract shall be adapted accordingly. Insofar as this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part. The customer shall have no claims for damages on account of such withdrawal.

XIII. Final provisions

Austrian law applies. The application of the UN Convention on Contracts for the International Sale of Goods dated 11. 04. 1980 is excluded.

The place of jurisdiction for all disputes between the contracting parties shall be Vienna.

Should a provision in these terms and conditions or a provision within the framework of other agreements between the parties be or become invalid, this shall not affect the validity of all other provisions or agreements. The parties undertake to replace an ineffective provision by a provision which comes as close as possible to the economic purpose of the ineffective provision in a legally permissible manner. The same applies mutatis mutandis if there are unintended gaps.