Terms
and
Conditions
Scope of Contract and Validity
All orders and agreements are only legally binding if they are signed in writing by the contractor in accordance with company policy and only oblige to the extent specified in the order confirmation. Purchasing conditions of the client are excluded for this legal transaction and the entire business relationship. Offers are generally without obligation.
Services and Inspection
The subject of an order may include: development of organizational concepts, global and detailed analyses, creation of custom programs, delivery of library or standard programs, acquisition of usage rights for software products, acquisition of copyrights, collaboration in commissioning (conversion support), consulting, program maintenance, creation of program carriers or other services. The development of individual organizational concepts and programs is based on the type and scope of the binding information, documents, and tools completely provided by the client. This includes practical test data and sufficient testing opportunities, which the client provides on time, during normal working hours and at his own expense. If the client is already operating the system provided for testing in real operation, the responsibility for securing the real data lies with the client. The basis for the creation of custom programs is the written performance description, which the contractor prepares based on the documents and information provided to him at the expense of calculation, or which is provided by the client. This performance description must be checked by the client for accuracy and completeness and endorsed with his approval. Subsequent changes in requirements may lead to separate agreements on deadlines and prices. Should no written performance description be available at the start of the order, the order will be developed at the risk of the client based on the offer. Custom-made software or program adaptations require a program acceptance by the client no later than four weeks after delivery. This is confirmed in a protocol by the client. (Check for accuracy and completeness based on the performance description accepted by the contractor using the test data provided under item 2.2.). If the client lets the four-week period expire without program acceptance, the delivered software is deemed accepted at the end date of the specified period. If the software is used in real operation by the client, it is deemed accepted in any case. Any defects that occur, which are deviations from the written performance description, must be sufficiently documented by the client and reported to the contractor, who strives for a quick possible remedy. If written, significant defects exist, meaning that real operation cannot begin or continue, a new acceptance is necessary after defect correction. A formal acceptance only takes place if this has been explicitly agreed upon. Unreserved acceptance of the service (especially use of the software) is considered an acceptance. When ordering library (standard) programs, the client confirms with the order that he is aware of the scope of the ordered programs. If during the course of the work it turns out that execution of the order according to the performance description is actually or legally impossible, the contractor is obliged to immediately inform the client. If the client does not adjust the performance description accordingly or creates the conditions that make execution possible, the contractor may refuse execution. If the impossibility of execution is the result of a client's failure or a subsequent change in the performance description by the client, the contractor is entitled to withdraw from the contract. The costs incurred up to that point for the contractor's activity and any dismantling costs are to be borne by the client. The shipment of program carriers, documentation, and performance descriptions are at the cost and risk of the client. Further training and explanations desired by the client are charged separately. Insurances and the production and delivery of user documentation are only carried out at the client's request and expense. We explicitly point out that barrier-free design (of websites) according to the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act - BGStG) is not included in the offer, unless specifically/individually requested by the client. If the barrier-free design has not been agreed upon, it is the client's responsibility to check the service for its admissibility with regard to the Federal Disability Equality Act. The client is also required to check the content he provides for its legality, especially in terms of competition, trademarks, copyrights, and administrative law. The contractor is not liable in case of slight negligence or after fulfilling a possible warning obligation towards the client for the legality of content if it was specified by the client. The parties will continuously cooperate closely and consult regularly during the execution of this contract and the provision of services by the provider. The client will provide the provider with the necessary cooperation and ancillary services required for the provision of services and ongoing cooperation to the best of his knowledge and belief, to a reasonable extent and within a reasonable period of time, to enable the provider to perform the services under this contract. If the client does not properly, timely, or to the agreed or required extent fulfill his cooperation and ancillary duties, the provider is not responsible for any delays in service provision to that extent.
Prices, Taxes, and Fees
All prices are in Euros excluding VAT. They apply only to the current order. The mentioned prices are valid from the business location of the contractor. The costs of program carriers (e.g., USB sticks, CDs, etc.) and any contract fees are charged separately. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the effort is charged at the rates valid on the day the service is performed. Deviations from a contract price based on time spent that is not the responsibility of the contractor are calculated according to actual occurrence. The costs for travel, daily allowances, and overnight expenses are charged to the client separately at the currently valid rates. Travel times are considered working time.
Delivery Date
The contractor strives to meet the agreed completion dates as accurately as possible. The targeted completion dates can only be met if the client provides all necessary works and documents in full, especially the performance description accepted by him as per item 2.3., on the dates specified by the contractor and complies with his obligation to cooperate to the required extent. Delivery delays and cost increases resulting from incorrect, incomplete, or subsequently changed information and documents provided are not the responsibility of the contractor and cannot lead to a delay on the part of the contractor. The client bears the resulting additional costs. For orders that include multiple units or programs, the contractor is entitled to make partial deliveries or issue partial invoices.
Payment
Invoices issued by the contractor, including VAT, are payable within 30 days of receipt of the invoice without any deductions and free of expenses. The payment conditions established for the overall contract apply analogously to partial invoices. For orders that include multiple units (e.g., programs and/or training, implementations in stages), the contractor is entitled to invoice after the delivery of each individual unit or service. Compliance with the agreed payment dates is an essential condition for the execution of delivery or fulfillment of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the ongoing work and withdraw from the contract. Additionally, all transferable licenses and rights remain with the contractor until full payment is made. All associated costs and lost profits are borne by the client. In the event of late payment, interest on arrears is charged at the customary bank rate. If two installments are not met during part payments, the contractor is entitled to declare a loss of terms and make submitted acceptances due. The client is not entitled to withhold payments due to incomplete overall delivery, warranty or guarantee claims, or complaints.
Copyright and Usage
The contractor grants the client a non-exclusive, non-transferable, non-sublicensable, and unlimited right to use the software to the extent of the acquired number of licenses for simultaneous use at several workstations after payment of the agreed fee, and to use all work results created on the basis of the offer or invoice from the contractor for his own, internal use. All other rights remain with the contractor. The client's participation in the production of the software does not acquire any rights beyond the agreed usage. Any violation of the contractor's copyrights leads to claims for damages, where full satisfaction must be provided in such a case. The contractor is further entitled to use, edit, distribute, and exploit the general findings, procedures, methods, know-how, and intermediate results underlying the work results. The production of copies for archive and data backup purposes is permitted to the client under the condition that the software does not contain an express prohibition of the licensor or third parties, and that all copyright and ownership notices are transferred unchanged in these copies. If the disclosure of interfaces is necessary for the production of interoperability of the subject software, this must be commissioned by the client against cost compensation from the contractor. If the contractor does not comply with this demand and decompilation occurs according to copyright law, the results are exclusively to be used for the production of interoperability. Misuse leads to claims for damages. If software is provided to the client whose licensor is a third party (e.g., standard software from Microsoft), the granting of the right to use is governed by the licensing terms of the licensor (manufacturer). The source code remains with the contractor, who undertakes to store it securely. At the request of the client, the contractor must hand over the source code to a notary appointed by the client for safekeeping, who may hand it over to the client upon request if the client (i) swears an oath that the contractor, despite written request by the client, has not been successful in remedying the defect by accessing the source code within a reasonable period or (ii) proves that insolvency proceedings have been opened over the assets of the contractor or a corresponding application has been dismissed due to a lack of coverable assets. The costs of custody are borne by the client. The client is obligated to use the source code released to him exclusively for the intended exercise of the granted usage rights, in particular for defect correction, and to keep it strictly confidential and to protect it from any unauthorized third-party access.
Right of Withdrawal
In the event of exceeding an agreed delivery time solely due to the fault or unlawful action of the contractor, the client is entitled to withdraw from the respective contract by registered letter if the agreed service is not provided in essential parts even within a reasonable grace period and the client is not at fault. Force majeure, labor disputes, natural disasters, and transport embargoes as well as other circumstances that are beyond the control of the contractor relieve the contractor from the delivery obligation or allow him to reschedule the agreed delivery time. Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge a cancellation fee of 30% of the value of the uncharged part of the total project value in addition to the services rendered and costs incurred.
Warranty, Maintenance, Modifications
A prerequisite for error correction is that the client describes the error sufficiently in an error report and that this is determinable and reproducible for the contractor; the client transmits the error report including a description of the error to the contractor in writing within a period of five (5) business days according to § 377 UGB; the client provides the contractor with all documents necessary for the error correction; neither the client nor a third party attributable to him has made interventions in the software; the software is operated under the intended operating conditions. In the case of warranty, improvement always takes precedence over price reduction or conversion. If there is a justified complaint about defects, the defects will be corrected within a reasonable period of time, while the client enables all measures necessary for inspection and defect correction. The assumption of defectiveness according to § 924 ABGB is excluded. Corrections and additions that prove necessary up to the handover of the agreed service due to organizational and technical defects, which are the responsibility of the contractor, are carried out free of charge by the contractor. Costs for assistance, misdiagnosis, and error and disturbance elimination, which are the responsibility of the client, as well as other corrections, changes, and additions are performed by the contractor for a charge. This also applies to the elimination of defects if program changes, additions, or other interventions have been made by the client himself or by third parties. Furthermore, the contractor does not provide a warranty for errors, disturbances, or damages due to improper operation, altered operating system components, interfaces, and parameters, use of unsuitable organizational resources and data carriers, as far as these are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions), as well as transport damage. Additionally, the contractor is not liable and must not provide necessary adjustments or extensions free of charge if these are mandatory due to third parties (such as Apple or Google). For programs that are subsequently changed by the client's own programmers or third parties, any warranty by the contractor is void. If the subject of the order is the modification or supplementation of existing programs, the warranty relates to the modification or supplementation. The warranty for the original program does not revive as a result. Warranty claims expire in six (6) months from handover. The warranty period begins with the acceptance of the order.
Liability
The contractor is liable to the client for damages caused by him provably due to gross negligence and intentional infliction of damage. This also applies accordingly for damages resulting from third parties involved by the contractor. In the case of culpable personal injuries, the contractor is liable without limitation. Liability for indirect damages – such as lost profits, costs associated with business interruption, data loss, or third-party claims – is expressly excluded. Claims for damages expire according to statutory provisions, but no later than one year from the date of knowledge of the damage and the injurer. If the contractor provides the work using third parties and warranty and/or liability claims against these third parties arise in this context, the contractor assigns these claims to the client. The client will primarily turn to these third parties in such cases. If data backup is expressly agreed as a service, the liability for data loss is not excluded, however, limited to a maximum of EUR 10% of the contract sum per damage case, but not more than EUR 15,000. Further claims for warranty and damages by the client – regardless of the legal basis – are excluded. If corresponding Open Source or Creative Commons or similar packages/software are used, the contractor must be held harmless and without blame regarding these parts. The client accepts, if not listed as a separate item on the order/offer, to dispense with test cases in the software. The contractor is not responsible for errors and any resulting delays in service provision that arise from this.
Loyalty
The contracting parties commit to mutual loyalty. They will refrain from poaching and employing, also through third parties, employees who have worked on the realization of the orders of the other contracting party during the term of the contract and for 12 months after the termination of the contract. The contracting party violating this is obligated to pay lump-sum damages in the amount of the employee's annual salary.
Data Protection and Confidentiality
The contractor obligates its employees to comply with the provisions of § 6 of the Data Protection Act. All parties involved commit to treat all knowledge of confidential information, business and trade secrets of the other party obtained during the contract initiation and execution confidentially for an unlimited time and to use it only for the purposes of executing this contract. The parties are to be qualified as independent data protection responsible parties and are each responsible in their own sphere for compliance with the applicable data protection provisions.
Reference Naming of Your Company
After successful completion of the project, RBYTE reserves the right to name your company and the software product developed by us as a reference. Through the reference, potential customers have the opportunity to be convinced of the quality of our work. Additionally, your company will receive a free backlink from our website, which can positively affect your SEO rankings. Please note that referencing and the backlink are standard practices in our industry and can be beneficial for both parties. We would like to point out that we usually make the reference naming of your company and the software product developed by us after the project handover and the successful launch. Should you explicitly reject referencing, we will of course respect this.
Severability Clause
Should individual provisions of this contract be or become invalid or should the contract have a loophole, this does not affect the validity of the remaining provisions. Invalid or incomplete provisions are to be replaced or supplemented by such provisions that most closely correspond to the economic intent of the parties. The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the competent court at the location of the provider. Austrian law exclusively applies, excluding conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Final Provisions
Unless otherwise agreed, the statutory provisions applicable between entrepreneurs apply exclusively according to Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the court competent for the business location of the contractor is exclusively agreed upon. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions apply only insofar as the Consumer Protection Act does not mandatorily prescribe other provisions.
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