General Terms and Conditions

General Terms and Conditions
of
Awarity Training Solutions GmbH

1. General

1.1. The Awarity Training Solutions GmbH (hereinafter the Contractor) provides services for its customers (hereinafter the Client) exclusively in accordance to the following General Terms and Conditions. These are valid for all contracts and business relationships between the Contractor and any client even, if there is no direct reference to the General Terms and Conditions.

1.2. The most recently revised version valid at the point in time of the conclusion of the contract is authoritative. Exceptions or deviations are only valid by a written approval which needs to be signed by both parties. General Terms and Conditions of the Client are generally excluded, unless those have been approved by the Customer by a written and signed consent.

2. Scope

2.1. The services provided by the Contractor are specified in the respective contract. Unless otherwise agreed, the Contractor provides his services during his normal business hours. The Contractor is responsible to provide the services in accordance to the respective contract.

2.2. The contractor is also responsible for the selection of the employees who shall perform the contractual services. The Contractor has the permission to engage third parties to perform the services. The contractor is allowed to change the resources engaged with the contractual work at his own discretion, provided that the services that are made available to the Client are not adversely affected.

2.3. The scope of the contractual services is in accordance with the service description from the Client. The description is part of the order confirmation and the contract. Subsequent changes of the service specifications require a written consent from the Contractor. If the changes require the provision of further services, the Contractor will provide a non-binding offer.

2.4. The Contractor commits himself to provide the contractual services in accordance to the contractually agreed Service Level Agreement (SLA).

2.4.1. Service Level Agreement A (SLA Type A)

  • Information Service
    The Contractor will keep the Client informed about new updates, features and current development.
  • Update Service
    The Contractor will provide updates at a certain time. These updates include error correction, improvement of the scope and adaptions of the software in accordance to changed legal requirements. The updates will be installed by the Contractor at pre-determined times (maintenance slots).
  • Hotline Service
    The Contractor will be available for consultation regarding troubles with the contractual service. In case of repeated claim for consultation for similar issues, the Contractor is entitled to make further contractual consultation dependent on additional trainings that entails a fee. The reaction time is determined with four hours. Unless otherwise agreed, a 24 hour hotline on seven days a week is provided within the SLA Type A.

2.4.2. Service Level Agreement B (SLA Type B)

  • Information Service
    The Contractor will keep the Client informed about new updates, features and current development.
  • Update Service
    The Contractor will provide updates at a certain time. These updates include error correction, improvement of the scope and adaptions of the software in accordance to changed legal requirements. The updates will be installed by the Contractor at pre-determined times (maintenance slots).
  • Hotline Service
    The Contractor will be available for consultation regarding troubles with the contractual service. In case of repeated claim for consultation for similar issues, the Contractor is entitled to make further contractual consultation dependent on additional trainings that entails a fee. The reaction time is determined with four hours within the normal hotline service hours. Unless otherwise agreed, the hotline hours for the SLA Type B consist of extended support hours from 7 am to 9 pm on work days (Monday to Friday).

2.4.3. Service Level Agreement C (SLA Type C):

  • Information Service
    The Contractor will keep the Client informed about new updates, features and current development.
  • Update Service
    The Contractor will provide updates at a certain time. These updates include error correction, improvement of the scope and adaptions of the software in accordance to changed legal requirements. The updates will be installed by the Contractor at pre-determined times (maintenance slots).
  • Hotline Service
    The Contractor will support the Client with consultation regarding issues of the provided services within the normal business hours of the Contractor. The normal business hours are from 8 am to 5 pm from Monday to Thursday and from 8 am to 2 pm on a Friday. On Holidays the office is closed. In case of repeated claim for consultation for similar issues, the Contractor is entitled to make further contractual consultation dependent on additional trainings that entails a fee. The hotline service is limited to five tickets per month. The Contractor does not guarantee reaction or solutions times. The Contractor commits himself only to react within a proper period of time.

2.5. If the Contractor performs activities outside of the normal business hours and on request of the Client, the activities will be charged extra in accordance to the current version of the collective agreement. At the time of preparation of the General Terms and Conditions, the following terms are valid: 50 percent extra charge beginning with the eleventh hour, 100 percent extra charge between 8 pm and 6 am, 100 percent extra charge on Sundays and Holidays. On Saturdays the extra charge of 50 percent is valid from the beginning.

2.6. Services that are requests by the Client and that extend the contractual scope, are invoiced by the Contractor in accordance to their actual expenses and at the applicable hourly rates. Such services are especially services outside of the normal business hours or analyzing and correcting of errors, which occur because of inappropriate use by the Client. Further services can be trainings, status reports or information material that extends the contractual scope and therefore also require an additional contract.

2.7. If support tickets are limited to a certain amount, the limitation is determined per month. Unused tickets are not valid after the end of the month.

2.8. The nature and level of developing individual concepts and software components is based on the information which are a binding part of the contract and provided in its fullest by the Client. This includes precise and effective testing data and possibilities, which are provided by the Client timely and free of charge. The Client commits himself to provide necessary testing resources. In case the test instance provided by the Contractor is already used for productive operations, the responsibility for the confidentiality and availability of the data lies with the Client.

2.9. The Contractor develops written specification based on the provided information from the Client. The Client is responsible for verifying the correctness and completeness and immediately raise any objections relating thereto. If there are not objections, the Client has to give his written consent. Subsequent change requests can result in separate deadline and price agreements and require the written consent of the Contractor. The Contractor is permitted to charge the Client for developing the written specifications.

2.10. Individually developed software components require an acceptance test by the Client, which has to be carried out within four weeks after delivery. The acceptance has to be confirmed by the Client within the test protocol. The tests for correctness and completeness have to be performed in accordance to the written and accepted service specifications. In case that the Client does not state any objections within four weeks after delivery, the contractual obligations of the Contractor are to be considered fulfilled with the last day of the test period. In case that the Client uses the software already for productive operations the contractual obligations of the Contractor are to be considered fulfilled. Any defects arising, which are deviations from the written specifications, have to be documented by the Client and communicated to the Contractor which endeavors to resolve the issue as soon as possible. If any of those defects are material shortcomings, which means that the productive use is or has become impossible, and a written documentation is available, the resolution of such a defect needs to be tested and accepted again within additional four weeks.

2.11. The Client is not permitted to deny acceptance because of insubstantial faults.

2.12. In case of ordering standard software components, the Client´s order includes the confirmation of the Clients knowledge about the ordered scope.

2.13. In case it becomes obvious during the course of the work that the fulfillment of an order according to the service specifications is actually or legally impossible, the Contractor is obligated to inform the Client immediately. In case that the Client is not willing to adapt the service specifications or create the necessary conditions in order to make the fulfillment possible, the Contractor is permitted to reject the performance of the order. If the fulfillment of the contractual obligations is impossible due to omissions of the Client or subsequent changes of the written specifications by the Client, the Contractor is permitted to reject the performance of the order. Any work already done by the Contractor and all expenses of the Contractor regarding the contract as well as any dismantling costs have to be compensated by the Client.

2.14. All shipment of data carriers, documentations and specifications will be at the Client´s risk and expenses. Any further trainings, workshops and explanations requested by the Client are invoiced separately. Insurance cover shall only be arranged at the request and expense of the Client.

2.15. In case the Contractor places a third party to the Client, the contract shall only be between the Client and the third party in accordance to the General Terms and Conditions of the third party. The Contractor is only to be liable for his own provided services.

3. Obligations of the Client to Cooperate and to Supply Products and Services

3.1. The Clients commits himself to support any measures necessary to allow the timely and high-quality delivery by the Contractor. Furthermore the Client commits himself to take all measures, which are necessary to fulfill the contract and are not within the contractual obligations of the Contractor.

3.2. If any services are provided on site at the Client´s location, the Client is responsible to provide the network components, power or other connections including voltage balancing, emergency power, space for equipment and other infrastructure (e.g. air conditioning), necessary for the Contractor to fulfill the contractual obligations. The Client is responsible to provide the necessary services to the required extend and quality and free of charge. In any case for operating hardware the Client is to be held responsible for the compliance with the requirements of the respective vendor. Furthermore the Client is to be held responsible for security and safety as well as protection against water, fire and unauthorized access. The Client is responsible for special security measures (e.g. secure areas). The Client is not authorized to give any orders and instructions to the employees of the contractor. All requests from the Client have to be communicated to a named contact person.

3.3. The Client will provide all information, data and documentations, which are necessary to fulfill the contractual obligations, for the Contractor at a pre-determined date and on his own expenses. Furthermore the Client will support the Contractor in any trouble shooting, error correction and the coordination of project tasks and services. If a change within the workflows of the Client result in a change of the services to be provided by the Contractor, the changes has to be verified by both parties regarding their technical and commercial impact.

3.4. Unless otherwise agreed, the Client will provide the network access on his own risk and expenses.

3.5. The Contractor is obligated to keep any provided access data, passwords and logins confidential.

3.6. The Client will keep all information provided to the Contractor in the original format, so that they can be reconstructed in the case of data loss or corruption.

3.7. The Client will fulfill his obligations in such a timely manner, that the Contractor is not being delayed in providing the contractual services. The Client is responsible to ensure that the Contractor and/or any third party working on behalf of the Contractor has the necessary access. The Client is responsible that all his employees, any employee working on his behalf and any third party working on his behalf is committed to fulfill the contractual services.

3.8. If the Client does not fulfill his obligations within the specified time period or the necessary scope, the contractual services provided by the Contractor are considered fulfilled, even if they are only available in a limited version. Schedules for the services to be provided by the Contractor will be adapted in agreement by both parties. Additional expenditure for the Contractor, arising from a fault within the Clients scope are compensated in accordance to their actual expenses and at the applicable hourly rates by the Client.

3.9. Delays or extra costs can arise from incorrect, incomplete or subsequent changed information and requirements provided by the Client. Such delays cannot result in an official delay by the Contractor. Any additional expenditures arising from such a case are compensated by the Client.

3.10. The Client ensured, that his employees and any third party working on his behalf treat the provided technologies and infrastructure as well as the assets left for use with care. The Client is to be liable for any damage.

3.11. Unless otherwise agreed, services provided by the Client in accordance to the contractual obligations are free of charge.

4. Personnel

4.1. If any employees of the Client are taken over by the Contractor, after the agreed contract, the conditions have to be stated in a separate contract.

5. Change Requests

5.1. Both parties can claim a change request at any time. A change request has to include a detailed description of the change, a reason, the impact on the schedule and the estimated costs of the change, so the recipient is able to rate the change request. A change request will only be binding with the signatures of both parties.

6. Defects

6.1. The Contractor is obligated to fulfill the contractual services. If the Contractor is not able to provide the services within the pre-determined time or with defects, in other words a significant deviation to the specifications, the Contractor is obligated to provide the contractual services within a proper time period and without defects. In order to do so, the Contractor can choose to repeat the affected services or correct the errors.

6.2. If the defect is based on a violation of the Clients contractual obligations or the Clients cooperation in accordance to point 3 of the General Terms and Conditions, the Contractor is not obligated to perform any free of charge measures to correct the error. In such a case, the contractual obligations of the Contractor are considered fulfilled, even if the service is only available in a limited version. On request of the Client, the Contractor can correct the errors for a certain fee.

7. Warranty

7.1. Subsequent complaints about defects are only valid if they concern defects that are reproducible and if they are submitted within four week after delivery or in case of an individual software component are documented in accordance to point 2.10. In case of warranty, the improvement has precedence over a price reduction or redhibition. In the event of a justified notice of a defect, the defects shall be remedied within a reasonable period of time, whereby the Client will provide all necessary measures to support the Contractor with the analysis and correction of the defect.

7.2. The terms of this point are valid for any delivery of hard- or software products from the Contractor to the Client. The warranty period for such deliveries shall be four months from the day of the delivery. Presumption of defect according to § 924 of the ABGB (Austrian civil code) is excluded. For any hard- or software from third parties, that is provided by the Contractor to the Client, the respective terms of warranty of the vendor shall be applied before any of the terms stated herein. Until full payment, the Contractor reserves the ownership of provided hard- and software products.

7.3. The Client will support the Contractor with the correction of the error and will provide all necessary information. Occurred defects have to be reported written or per E-Mail to the Contractor immediately. Additional expenditure, arising because of a delayed report are compensated by the Client.

7.4. If programs have subsequently been adapted by the Client´s programmers or third parties, which work on behalf of the Client, the warranty by the Contractor is excluded.

7.5. The warranty by the Contractor is excluded for defects, disturbances and damages, which occur because of improper handling, changed components of operating systems, the use of inappropriate organization materials and data carriers, if such are mandated, abnormal operating conditions (especially installation and storing conditions) as well as transportation damages.

7.6. If the contractual services only affect an already existing software component, the warranty is only valid for the adaption or the extension of the component. The warranty for the original product does not thereby again come into effect.

8. Contractual Penalty

8.1. The Contractor is obligated to comply with the pre-determined recovery times in accordance to pre-determined priorities. If the Contractor exceeds the determined recovery times, the Contractor has to pay a penalty for every hour until the actual recover. The penalty has to be paid in accordance to the contract. Penalties need to be determined within the contract.

8.2. The mentions penalty are limited per year with ten percent of the yearly sales volume. Further claims for compensating damages are excluded, as long as they are not based on extremely gross negligence or intent.

8.3. In case that exceedances, which result in penalties, occur, the Contractor has to be informed immediately with a written note.

9. Liability

9.1. The Contractor is only to be liable for damage caused verifiable by him or any third party which works on his behalf, if the event was caused by extremely gross negligence or (wrongful) intent of the Contractor. In case of individual injury or damage to health, the vendor is to be liable.

9.2. The liability for damage is generally excluded, as long as the damage was not caused by extremely gross negligence or intent.

9.3. The liability for indirect economic damages – such as loss of profit, costs of a business interruption or data loss are excluded.

9.4. Claims for compensating damages expire in accordance to the legal regulations, but in any case one year after gaining the knowledge of the damage and the party responsible for the damage.

9.5. If the solution is provided with the help of third parties, any warranty and liability claims which arise against the third party shall be passed on to the Client. The Client shall primarily refer to the third party.

9.6. If the data backup is an explicit part of the contractual services, the liability regarding data loss is in deviation to point 8.3 not excluded. Any liability claims regarding the data recovery is limited with ten percent of the actual agreed amount of the order, per data loss and with a total maximum of EUR 5,000,–. Further warranty claims or claims for damage compensation – for whatever legal reason – are excluded.

10. Reimbursement

10.1. The reimbursements that will be invoiced by the Contractor and have to be paid by the Client are based on the contract. All pricing information is understood to be in Euro and without the statutory VAT.

10.2. Travelling times of employees are considered to be normal working hours. Travelling times will be charged in accordance to the agreed hourly rates. Furthermore travel expenses will be charged in accordance to the amount of the official kilometer allowance. Any hotel costs will be charged in accordance to the actual expenses. The reimbursement of travel and associated costs will be invoiced on production of supporting documents.

10.3. The Contractor reserved the right to make the providing of services dependent on executions of advance payments or other guarantees.

10.4. Unless otherwise agreed, non-recurring payments for individual services shall be invoices after the services has been provided by the Contractor and recurring payments will be invoiced yearly in advance. Received invoices from the vendor have to be paid in full without deductions of any kind and including the statutory VAT within 14 days from receiving the invoice. The terms of payments apply to partial invoices as well as normal invoices equally. A payment is considered to be done, on the day, the Contractor is able to dispose the money. In case that the Client is in delay with the payments, the Contractor is entitle to claim extra fees, such as statutory interest and all costs incurred due to the enforcement of the claim. If the payment is overdue for more than 14 days, the Contractor reserves the right to deactivate all systems provided for the Client as well as stop any services immediately. Furthermore the Contractor reserves the right to invoice all already provided services immediately.

10.5. The Client is permitted do apply set-off only with a written consent of the Contractor. The right of retention for the Client is excluded.

10.6. All contractual costs arising from the business relationship, such as stamp duties on legal transactions or taxes, are reimbursed by the
Client.

10.7. In case, that the Contractor is being invoiced fur such costs, the Client will reimburse the Contractor.

10.8. If fixed dates and time limits relating to full or remaining parts of a service provision are not met, the Client does not have the right to withdraw from the contract nor is he entitled to claim damage compensation.

11. Services which are not covered by this contract

11.1. In case of an unauthorized claim of services from the Client, the Contractor is entitled to invoice the service in accordance to the agreed hourly rates.

11.2. Services which result from changes regarding operating systems and hardware or changes of non-contractual software and interfaces, which the service depends on.

11.3. Individual adaptions of the software as wells as new individual features.

11.4. Adaptions of the software which result from changed legal regulations, if they require a change of the program logic.

11.5. The Contractor shall be discharged from any contractual obligations, if adaptions of the contractual software is done by employees or third parties working on behalf of the Client and without the prior consent of the Contractor. This term shall also apply, if the Client uses the software in any other way than intended by the contract.

11.6. The correction of errors, which have been caused by the client or third parties.

11.7. Damage, loss and mitigation services, which result from direct or indirect actions or non-actions by the Client or the users.

11.8. Data conversion, data recovery and interface adaption.

12. Right of Withdrawal

12.1. Where, as a consequence of force majeure or exceptional circumstances, contractual obligations cannot be fulfilled, this is not considered to be a violation of the contract. Such circumstances are for example war, terrorism, natural catastrophe, fire, strike, lock-out, embargo, interventions of public authorities, power failure, failure of transportation, failure of data and telecommunication networks, changes of legal regulations regarding the services or the non-availability of products.

12.2. The cancellation of the contract by the Client is only possible with a written consent of the Contractor. If the Contractor agrees with the cancellation, he reserves the right to invoice already provided services as well as cancellation fee of 30 percent of the services, which have not been invoiced yet.

12.3. In case that the Contractor does not met fixed dates and time limits and the fault is only with the Contractor or the Contractor acted against the law, the Client reserves the right to withdraw from the contract, as long as the Contractor is not able to provide the contractual services within a proper period of grace and the further delay is not caused by the Client.

13. Individual Rights of Use

13.1. Insofar as the Contractor provides software products to the Client or the Client is entitled to use software products of the Contractor in accordance to the contract, the Client acquires the non-exclusive, non-transferable and the non-sublicensable right, which limited to the duration of the contract, to use the software product in unamended form.

13.2. In case of using a software product within a network, a license for every user is required. In case of using the software product on a standalone computer, a license for every computer is required.

13.3. If the Contractor provides products of third parties, the terms and conditions of the third party´s license agreement shall apply before the terms and conditions of the Contractor.

13.4. Unless otherwise agreed, the Client does not acquire any more rights on the software product.

13.5. The rights of the Client according to §§ 40(d), 40(e) of the UrhG (Austrian Copyright Statue) are not affected.

13.6. The Client is prohibited from reproducing and making available against payment or free of charge of provided materials, especially documentations.

14. Duration of the contract

14.1. The contract shall enter into force by the day, both parties sign the contract and is valid for a pre-determined period of time. Afterwards, the contract does end automatically, a specified cancellation is not required. An extension of the contract is possible by a new order from the Client.

14.2. On important reason, both parties are entitled to terminate the contract immediately by sending a registered letter to the other party. Such an important reason exists in particular when the other party violates essential contractual obligation in defiance of a written notice and a threat of terminating the contract. Another reason would be if one party requests, becomes the subject of or is because of lack of assets rejected from bankruptcy or insolvency proceedings. Furthermore if the services provided by one party are delayed by force majeure or exceptional circumstances for more than six months, an important reason is given as well.

14.3. The Contractor is also entitled to terminate the contract immediately, if main parameters change and therefore a continuation of the contract becomes impossible due to economic aspects.

14.4. In case of an ending contract, the Client has to return all provided materials and documentations to the Contractor.

14.5. On request of the Client, the Contractor provides support with dismantling activities. The Client will be charged for such services in accordance to the agreed hourly rates.

15. Data Protection and Privacy

15.1. In accordance to the use of personnel data, the Contractor ensures compliance to the legal regulations regarding the Data Protection Law and the Telecommunication Act. Furthermore he commits himself to take all necessary measures to protect personnel data, which is provided to the Contractor.

15.2. The Contractor ensures, that his employees are bound to the terms of § 15 of the Data Protection Act (Austrian Data Protection Act).

15.3. The Contractor is not obligated to verify, if the services requests from the Client are aligned to the data privacy regulations. The admissibility of the provision of personnel data to as well as the processing of such data by the Contractor has to be guaranteed by the Client.

15.4. The Contractor shall take every reasonable step to prevent the unauthorized access to data belonging to the Client, no matter the location of the data. Nonetheless the Client cannot hold the Contractor liable in case an unauthorized access to data belonging to the Client occurs.

15.5. By signing this contract, the Client agrees, that the data associated with the contractual obligations, can also be given to subcontractors, which are working on behalf of the Contractor and are directly affected with the contractual obligations.

16. Confidentiality

16.1. Both parties ensure each other, that any confidential information associated with this contract and its fulfillment is to be treated as such and the parties are prohibited to provide such confidential information to third parties. These terms shall not apply if, the information was already publically known at the time the contract was signed, the information was already provided to the other party before the NDA was signed, the information was verifiable developed by the other party on his own or the information has to be provided to a legal authority by the law.

16.2. Any subcontractors, which work on behalf of one of the named contract partners, are not to be considered as third party and shall align to the terms and conditions of a proper NDA.

17. Miscellaneous

17.1. Both parties name a specified single point of contact within the contract. Those contact persons are responsible for the fulfillment of the contractual obligations.

17.2. While the contract is effective and at least until one year after the end of the contract, the Client will not recruit any employees of the Contractor, which were assigned to the contractual obligations. In case of violation of this term, the Client commits himself to pay a penalty, which amounts to the twelvefold of the last salary the affected employee received. The penalty shall at least be the yearly income of an experienced employee for specialized operations (ST2) in accordance to the collective agreement of companies in the sector of “Dienstleistungen in der automatischen Datenverarbeitung und Informationstechnik”.

17.3. The Client grants the Contractor the right to use the Clients company logo on the website as well as within sales and marketing documents (e.g. presentations, folders, flyers, press releases, social networks, online media and so on) as a customer reference. Furthermore the partner grants the vendor the right to officially name the Client as a customer during sales meetings, press conferences, interviews, talks, presentations and other occasions. The Contractor has to ensure, that according to the Non-Disclosure Agreement no further information about the partner is published or provided to others.

17.4. Changes or additions to the contract are only effective, if they are in written form and signed by the Client and the Contractor.

17.5. If any individual regulations of these conditions become completely or partially ineffective, the validity of the rest of the agreement will not be affected. The parties are obliged to replace the ineffective regulation with one that comes closest to supporting their economic success. The same applies for gaps in the agreement.

17.6. Any disposition regarding the contractual permissions and obligations require prior written consent of the affected contract partner. The Contractor is entitled to instruct another company of the Awarity Group to carry out the contract, even without prior consent of the Client.

17.7. The contractor is entitled to instruct third party companies to fulfill the contractual obligations.

17.8. Unless otherwise agreed, the statutory provisions to full merchants shall exclusively apply according to Austrian law, even if the contract is fulfilled in another country. For potential disputes applies only the local competency of the objective responsible court for the place of business of the Contractor.

17.9. The normal business hours of the Contractor are from 8 am to 5 pm on Monday to Thursday and from 8 am to 2 pm on Fridays. On Holidays according to the Austrian government and the Roman Catholic Church the office is closed. All provided times are considered to be Central European Time (UTC +1).