General Terms and Conditions
(Version of January 1st, 2018)
1. Scope of Application
1.1. The following General Terms and Conditions shall apply to all deliveries and services of targit GmbH (hereinafter referred to as the “contractor”) vis-à-vis merchants, legal entities under public law and special public sector funds.
1.2. Any deviating General Terms and Conditions of clients, which have not been explicitly acknowledged in writing, will not be accepted, even when we have not objected to them directly. Such conditions are only valid on express written agreement and for the individual case only.
2. Quotation, Orders
2.1. All quotations have a binding effect. A contract is only concluded once the supplier confirms the order of the client in a written order acceptance – this can also be in the form of an e-mail. We do not assume any liability for orders placed orally, by phone, wire or other notifications.
2.2. Changes in, or supplements to the quotations/ orders must be made in writing to become effective lawfully. Oral supplementary agreements are excluded. The requirement of the written agreement can only be waived in writing.
3. Object of Sale, Rights in Software Products
3.1. We retain the legal right of property and the copyright in our quotations, drafts and other documents delivered. They must not be made available to any third parties.
3.2. The software products that have an identical licensing number may only be stored on a single system unit. The client will not retranslate nor otherwise process any software products without the written consent of the contractor.
3.3. The client is entitled to make a copy of each software product for backup purposes. In this case, the client is obliged to copy all alphanumerical designations, trademarks and copyright notes without making any changes therein and to maintain records about the copies’ locations, which may be inspected by the contractor on demand. The client is not entitled to reproduce any documentation.
3.4. The client shall ensure, indefinitely, that the software products, any copies thereof and the relevant documentation are not made available to any third parties without first obtaining the written consent of the contractor.
4. Prices, Payment, Reservation of Title
4.1. All prices are net prices without any discounts plus applicable VAT.
4.2. Our invoices are due and payable net within 30 days from the invoice date. The customer shall only be entitled to setoff with legally established or uncontested counterclaims.
4.3. Until the full payment of the agreed price has been made, the goods shall remain the property of the contractor (conditional goods). The client may use the conditional goods and shall treat them with appropriate care. In relation to third parties, e.g. in the event of attachments, the client shall advise the third party that the products are the property of the contractor and shall immediately notify the contractor thereof.
5. Delivery of software
5.1. The software developed by us may only be run on an operating system tested and approved by us. We shall not be liable for any damages that occur due to a violation of this provision.
5.2. Licensed software products, inlcuding any successor versions, as well as parts thereof and associated documentation may only be used on the server (workstation) on which it was originally installed. The software products may only be copied for back-up purposes and must include the proprietary note on the original copy and may only be used on this server (workstation). The client shall protect the software products from any interventions of third parties. Persons who exercise the client’s right of use on its behalf shall not be deemed as third parties. All rights of exploitation in software remain with the contractor. If the client violates these licensing terms, the contractor shall have the right, after having warned the client to no avail, to terminate the licensing agreement and to demand the return of software and all parts and copies thereof. The licensing fee shall not be refunded. The same shall apply to unlicensed software in the case of infringement of the abovementioned provisions. The license shall be deemed granted, when the software product is paid for in full. Afterwards the contractor is allowed to use the Logo and Businesscase of the client as reference.
6. Consulting services
6.1. The content of the consulting services shall be agreed upon in the consulting agreement. Consulting services always relate to a specified period and not to the complete achievement of a defined objective. Nevertheless, the contractor will attempt to achieve the defined objective within the specified period. Consulting services are always provided by targit GmbH and not by a specific employee.
6.2. Any actions and results deriving from a consulting service shall be the sole responsibility of the client.
6.3. The client shall be obliged to request the consulting services defined in the consulting agreement until the end of the consulting agreement. Otherwise, the consulting services shall be deemed as having been rendered by the contractor without proof being required on the part of the provider of services.
6.4. The client shall specify competent contact persons, who shall provide in due time all information and assistance necessary for rendering the relevant services. Any delays, which have incurred due to the late provision of information, shall be charged as waiting time – on the same basis as consuting services.
6.5. targit GmbH will only pay any damage claims resulting from a violation of duties in connection with consulting services, which are based on gross negligence or intent. The reimbursement is limited to damage that can be expected within the usual course of affairs. The reimbursement does not cover any economic losses.
The contractor guarantees that it developed and tested any programs supplied to its best knowledge. If any defects occur during the ordingary operation of the programs under the operating prerequisites by the contractor, the client may request removal of the defects within the context of supplementary performance. The contractor shall send the client a confirmation of the recorded defects. Rectification shall be effected within the shortest possible time using all information provided by the client about the program platform, computer environment and interface files, if the defect is understandable. The contractor does not assume any liability for any expenses incurring and/or incurred in connection with a failure of the programs. In addition, the contractor does not assume any liability for error or problems resultig from improper or undocumented operation of the programs. The right to claim for damages or to cancel the contract after a failed supplementary performance and to the supplementary performance itself is time-barred after 1 year following the delivery of services.
8. Liability of the contractor
8.1. Provided that nothing different is specified below, other and further claims against us by the Principal, to those supplemental performance and compensation claims explicitly mentioned in these General Terms and conditions shall be excluded. This shall specifically apply to compensation claims from breach of duties arising from the contractual obligation and from liability in tort. Therefore, we shall specifically not be held liable for operational disruptions, loss of information data, lost profit or other financial losses incurred by the Principal.
8.2. The above mentioned liability limitations shall not apply in the case of intent, gross negligence by our legal representatives or management staff, or in the case of culpable breach of material contractual obligations. In the case of breach of material contractual obligations, we shall only be held liable – except in cases of intent or gross negligence by our legal representatives or management staff – for typical contractual, reasonably foreseeable, direct losses.
8.3. Furthermore, the liability limitation shall not apply in cases where liability exists under product liability law for personal injury or property damage to privately used items, resulting from defective delivered goods. It shall also not apply in the case of injury to life, limb or health and the lack of guaranteed characteristics, if and insofar as the purpose of the guarantee was specifically to protect the Principal from losses that are not incurred to the delivered goods themselves.
8.4. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our salaried employees, wage-earners, staff, legal representatives and auxiliary persons.
8.5. This shall not affect the legal provisions regarding the burden of proof.
9. Contractor’s Liability for Violation of Third-party Copyrights
9.1. If a third party asserts claims against the client due to a violation of industrial property rights or copyrights (hereinafter referred to as „industrial property rights“) in the product/programs transferred, leading to an impairment in or prohibition of use of the products/programs, the contractor, at ist option and ist own cost, will either modify or replace the products/programs in such a manner that they do not violate industrial property rights, but essentially comply with the agreed specifications, or reimburse the client the third-party licensing fees for use of the products/programs, or take back the products/programs against reimbursement of the fees paid by the client, less a certain amount for the period of their use.
9.2. The prerequisites for the contractor’s liability in accordance with Number 9.1 are that the client notifies the contractor immediately in writing of any claims asserted by third parties due to a violation of industrial property rights, does not acknowledge the purported violation and only handles any disputes, including possible out-of-court settlements, after consultation with the contractor. If the client ceases to use the products/programs in order to mitigate the damages or for other important reasons, it shall be obliged to notify the third party that cessation of use does not represent an acknowledgement of the industrial property rights violation.
9.3. To the extent that the client itself is responsible for the violation of the industrial property rights, any claims against the contractor in accordance with Number 8.1 are excluded. The same shall apply, if the industrial property rights violation is due to specifications provided by the client, to an application not foreseeable by the client or caused by the fact that the products/programs have been changed by the client or used jointly with other products/programs not supplied by the contractor.
9.4. Further claims of the client due to violation of industrial property rights of third parties are excluded. The client’s right to cancel the contract and the regulations mentioned in Number 7. shall not be affected.
10. Place of Jurisdiction
The place of jurisdiction is Vienna. Any disputes arising out of the business relationship with the contractor are to be interpreted in accordance with Austrian law, unless the particularity of a case leads to a deviating assessment to which both contractual parties agree.