Gadollaplatz 1, 8010 Graz, Österreich, VAT: ATU65885358, Company Register: FN 349730i
in the version of January 1, 2022
Disclaimer: The English version of the terms and conditions (T&C) provided on this website is solely for convenience and ease of understanding. The AGB (Allgemeine Geschäftsbedingungen) in German language are the only legally binding version of the T&C. In case of any discrepancies or conflicts between the English version and the German version, the AGB in German language shall prevail and apply.
1.1 All orders and agreements shall only be legally binding if they are signed by the contractor in writing and in the proper form, and shall only be binding to the extent specified in the order confirmation or, as a matter of priority, in the latest project report.
1.2 The General Terms and Conditions (AGB) and Terms & Conditions of Purchase of the client are hereby excluded for the present legal transaction and the entire business relationship. The present General Terms and Conditions shall therefore have priority with regard to any orders placed by the client.
1.3 All offers are subject to change, unless it is expressly stated as a "legally binding offer". They are considered an initial basis for collaboration and effort estimation.
The client expressly agrees to agile contracting, which is defined as follows:
2.1 It is considered as agreed that with the drawing of a project or delivery report provided in the course of the project, agreed contract contents (i.e. delivery items as well as economic and legal framework conditions) from previously provided offers or reports are completely replaced by those of the drawn document, for each content covered therein. Accordingly, new documents shall always have priority.
2.2 In particular, it is important to note that not all previous contract contents of an ongoing project may continue to be relevant for the client. Agile project management and contract management enables simple mutually agreed changes and documentation in the course of the project via project reports. Thus, it applies that those contract contents are explicitly not (or no longer) included which are listed as "not planned" in a performance overview.
2.3 This leads de facto to an ongoing revision or adjustment of the corresponding contract on the project report, which always covers the entire project.
2.4 Should individual provisions of the corresponding contract be invalid or unenforceable, or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable clause, the effects of which come closest to the economic and legal objective pursued by the contracting parties with the invalid or unenforceable provision. This shall apply accordingly only in the event that the contract proves to be incomplete.
The order types described in more detail below are offered by the contractor. With the exception of the order form "functional specification", each order form listed below is to be understood as a service contract. If the order form is not explicitly stated in the offer, the order shall be deemed to be a "fully agile project" as stated below. The process model according to the order form is explicitly subject matter of the contract and an important part of the cooperation.
3.1: Fully agile project: The project will be implemented using agile methods to create or further develop an MVP ("Minimum Viable Product"). The agile process allows for flexible consideration of changes to the project as they occur. The following is agreed upon:
i. The MVP is defined as the first minimally functional iteration of a useful product. This is used to learn from user feedback as quickly as possible to prevent undesirable developments that do not contribute to meeting user requirements.
ii. For the MVP, as well as for any further iterations thereof, an estimate will be prepared by the contractor on an ongoing basis and communicated to the client.
iii. Prioritization of the work packages to be implemented is always based on the "business value", the value that the work package represents for the product to be created. This is done iteratively (e.g. every two weeks), together with the client.
iv. The estimation of the total costs of the MVP, or the following iterations of the software, which can be derived from the agile project plan - the "backlog" - are available to the client at any time and can be seen in the project or delivery reports. Experience shows that the estimation variance over the entire course of the project is very low on average. As a result, the planned budget for a delivery can usually be adhered to, even in the event of deviations in expenditure.
v. In case of cost overruns according to estimation or planning, the deviation is discussed with the client in a very transparent manner and a joint solution is sought. This way, often with compromises on both sides, a budget-compatible implementation of all planned functions is ensured.
vi. For each planned delivery, the client regularly places (micro) orders that contribute to the fulfillment of the project or product vision by means of a written release. The individual work packages of the delivery ("User Stories") shall be considered part of the corresponding order.
vii. Consequently, the project is not subject to any generally fixed time or economic constraints, as the client, together with the contractor, continuously defines the content, priorities, volumes and delivery dates of the next iterations.
3.2 Agile fixed price: The project is offered at an agile fixed price, based on the principles of the fully agile project. In contrast, projects with agile fixed price primarily change requirements rather than the overall price.
i. Features that contribute less to the success of the project can be replaced with new features during the course of the project while maintaining the defined overall price.
ii. Even with a fixed price, the agile process model ensures that the project can react flexibly to changed requirements.
3.3 Requirements specification: The basis for the creation of software is the written performance description - the "requirements specification" - which the contractor prepares against cost calculation on the basis of the documents and information made available to them or which the client makes available.
i. The specification shall be checked by the client for correctness and completeness and shall be marked with their approval.
ii. Change requests occurring later may result in separate scheduling and pricing arrangements.
3.4 Time and material: Any services shall be performed exclusively on time records and against billing of the hours incurred at the contractor's list price.
i. Such services shall include, but not be limited to, the following activities: Requirements gathering, design services, development services, project management, deliveries, support via telephone, mail or (video) chat, error analysis, troubleshooting, any form of internal or external meetings for or with the client, and any other activities of the contractor that can be directly attributed by the contractor to the corresponding project.
ii. In addition, liability, warranty and guarantee are excluded for the contractor, as far as legally possible, for any services and delivery items. Furthermore, the contractor shall only be liable in case of gross negligence or intent.
4. Performance and testing
4.1 The subject of an order is explicitly and exclusively stated in the offer or the project and delivery report, thus any subsidiary agreements, even if they are recorded in writing, are not part of the scope of services and delivery.
4.2 The elaboration of individual organizational concepts and programs shall be carried out according to the type and scope of the binding information, documents and tools provided in full by the client. This shall also include practical test data as well as test facilities to a sufficient extent, which shall be made available by the client in a timely manner, during normal working hours and at its own expense. If the client is already working in live operation on the equipment provided for testing, the client shall be responsible for securing the live data.
4.3 Any delivery items, such as individually created software or program adaptations, shall require acceptance for the respective delivery concerned no later than 21 working days after delivery (and optional provision of the delivery or project report by the client). The delivery will be confirmed in writing by the client. This confirmation shall include a check for correctness and completeness based on the performance specification accepted by the contractor by means of the test data provided by the client. If the client allows the period of 21 working days to elapse without written acceptance, the delivered software shall be deemed to have been accepted and delivered free of defects as of the end date of the said period. At the latest when the software is used in live operation by the client, the software shall in any case be deemed to have been accepted without defects.
4.4 Any occurring defects, i.e. deviations from the service description agreed in writing, the project report or the delivery report, shall be reported by the client to the contractor with sufficient documentation, who shall try to remedy the defects as quickly as possible. If there are significant defects reported in writing, i.e. real operation cannot be started or continued, a new acceptance shall be required after the defects have been remedied.
4.5 The client is expressly not entitled to refuse acceptance of software due to immaterial defects or to withhold payment due to delays in delivery and/or defects.
4.6 Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the contractor shall be obliged to immediately notify the client thereof. If the client does not change the service description or create the preconditions for execution to become possible, the contractor may refuse execution. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change to the service description by the client, the contractor is entitled to withdraw from the order - see also " project cancellation".
4.7 In the event of cancellation, termination of the project or premature termination of the project for other reasons, the following costs will in any case incur, irrespective of the reason, which the client shall reimburse the contractor for:
i. For unscheduled organizational administrative expenses: flat rate of 1 person-day
ii. For accrued project costs including any third party costs and for services already performed but not yet invoiced: costs according to the project report as well as costs according to the contractor's hourly records.
iii. For technical dismantling and demolition costs: flat rate of 15% of the average monthly planned volume to date
iv. For lost profit: flat rate of 15% of the unbilled contract value of the total project
v. A cancellation/abandonment fee: 25% of the unbilled contract value of the total project
4.8 In the case of payments on account, advance payments or down payments, the following shall apply: Services which are not called within twelve months shall be deemed to have lapsed or to have been consumed if the contractual partner does not demand them in writing within this period as open services. Thus, services that have not been called for shall be booked by the contractor after 18 months at the latest for (project-specific) further training, optimization and/or research, as well as for documentation, administration or management expenses.
4.9 If the client does not fulfill their obligations to cooperate on the agreed dates or to the intended extent, the services provided by the contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions.
4.10. Dispatch - both by mail and digitally - of program carriers, documentation and service descriptions shall be at the expense and risk of the client. Any additional training and explanations requested by the client shall be invoiced separately. Any insurance shall only be provided at the request of the Client.
4.11. We expressly point out that a "barrier-free design (of websites) within the meaning of the Federal Act on the Equalization of Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz- BGStG)" is not included in the offer, unless this was requested separately/individually by the client and is explicitly stated in the offer. If the barrier-free design has not been agreed upon, the client shall be responsible for reviewing the service for its admissibility with regard to the Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz - BGStG). Likewise, the client shall review content provided by him for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The contractor shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the client if the content was provided by the client.
5.1 All prices are quoted in Euro without VAT. They apply only to the present order. The prices quoted are ex contractor's registered office or place of business. The costs of physical data carriers as well as any contract fees shall be invoiced separately.
5.2 For consulting services as well as for other services, such as organizational consulting, programming, training, changeover support, telephone consulting, etc., the amount of work shall be invoiced in advance or at the rates applicable on the day the service is rendered. Deviations from the time expenditure on which the contract price is based, for which the contractor is not responsible, shall be invoiced according to actual occurrence.
5.3 The costs for travel, daily and overnight allowances shall be invoiced to the client separately according to the applicable rates. Travel times shall be deemed to be working time.
6.1 The contractor shall strive to meet the agreed deadlines for performance (completion) as closely as possible.
6.2 The targeted completion dates can only be met if the client provides all necessary work and documents in full, in particular the service description accepted by them according to the latest project or delivery report, signed, and complies with their obligation to cooperate to the required extent by the dates specified by the contractor.
6.3 The contractor shall not be responsible for delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed specifications and information and/or provided documents, and such delays and cost increases may not lead to a delay on the part of the contractor. Any additional costs resulting therefrom shall be borne by the client.
6.4 In case of orders comprising several units, programs or program parts, the contractor shall be entitled to make partial deliveries or to issue partial invoices.
7.1 The invoices issued by the contractor, including VAT, are payable from receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment specified for the overall order shall apply analogously.
7.2 In case of orders comprising several units (e.g. programs and/or trainings, realizations in partial steps), the contractor shall be entitled to invoice each individual unit or service before or after delivery.
7.3 Compliance with the agreed payment dates shall be an essential condition for the performance of the delivery or fulfillment of the contract by the contractor. Failure to comply with the agreed payments shall entitle the contractor to stop the work in progress and to withdraw from the contract. All related costs according to item 4.7 shall be borne by the client.
7.4 In the event of late payment, interest on arrears shall be charged at the rate customary in banking. In the event of failure to pay two installments of partial payments, the contractor shall be entitled to terminate the contract and to call in any acceptances handed over. Furthermore, the contractor shall be entitled to unilaterally terminate the present contract prematurely, in which case additional costs shall be incurred in accordance with item 4.7.
7.5 The client is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
8.1 For projects with transfer of ownership the following applies:
i. The contracting parties hereby agree that all ideas, know-how, processes, information, drawings, documents, designs, models as well as inventions and all other copyrightable materials and other tangible and intellectual property written, created, produced, handed over, conceived or put into practice in whole or in part by the contractor and/or consultants in the performance of the work services, in particular computer programs and computer systems, data and documentation (collectively "works"), shall be the sole and exclusive property of the client.
ii. The contractor hereby irrevocably, expressly and without the need for any additional act of transfer, assigns to the client all worldwide property rights and ownership claims with respect to said works, including, without limitation, copyrights, patent rights, trade secrets, trademarks, moral rights and other protective and intellectual property rights.
iii. If the contractor has any rights to the works that cannot be assigned to the client, (i) the contractor unconditionally and irrevocably waives any right to enforce such rights, and (ii) the contractor unconditionally and irrevocably grants to the client during the existence of such rights an exclusive, irrevocable, perpetual, worldwide and royalty-free license to reproduce, adapt and distribute and publicly perform and display the works, in each case on such terms as are now or may hereafter be available, and the client shall be entitled to grant sub-licenses, in each case again with the right to sub-license.
8.2 For projects without transfer of ownership, the following shall apply:
i. After payment of the agreed remuneration, the contractor shall grant the client a non-exclusive, non-transferable, non-sub-licensable right, unlimited in time, to use the software for the hardware specified in the contract and, to the extent of the number of licenses purchased, for simultaneous use on several workstations/terminal devices, or to use all work results created on the basis of the contractor's contract for its own, internal use. All other rights shall remain with the contractor.
ii. The client's participation in the production of the software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the contractor's copyrights shall result in claims for damages, and full compensation shall be paid in such a case.
iii. The client is permitted to make copies for archiving and data backup purposes on condition that the software does not contain any expressed prohibition by the licensor or third parties, and that all copyright and proprietary notices are transferred unchanged to these copies.
iv. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, the client shall request this from the contractor against reimbursement of costs. If the contractor does not comply with this requirement and decompilation is carried out in accordance with the Copyright Act, the results are to be used exclusively for the purpose of establishing interoperability. Misuse will result in compensation for damages.
v. If software is provided to the client whose license holder is a third party (e.g. office standard software), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).
9.1 In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the contractor, the client shall be entitled to withdraw from the respective order by registered letter if the agreed service is not provided in essential parts even within a reasonable grace period of at least 21 working days and the client is not at fault.
9.2 Force majeure, labor disputes, natural disasters, pandemic-related restrictions and transport blockages as well as other circumstances beyond the control of the contractor shall release the contractor from the delivery obligation or allow the contractor to reschedule the agreed delivery time.
9.3 Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, they shall have the right to charge the costs from item 4.7 in addition to the services rendered.
10.1 The contractor warrants that the software fulfills the functions described in the associated project and delivery reports, provided that the software is used on the "Hardware and Software Baseline" described in the contract. The term "Hardware and Software Baseline" means the explicitly agreed end devices and software versions of the operating systems on which the delivered software is quality assured by the contractor.
10.2 Prerequisite for the elimination of errors is that
i. the client sufficiently describes the error in an error message and this can be determined by the contractor;
ii. the client provides the contractor with all documents required for the elimination of the error;
iii. the client or a third party attributable to him has not interfered with the software;
iv. the software is operated under the intended operating conditions in accordance with the documentation or the order.
10.3 In the event of a warranty claim, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of at least ten (10) working days, whereby the client shall enable the contractor to take all measures necessary to investigate and remedy the defects.
10.4 The presumption of defectiveness pursuant to § 924 ABGB shall be excluded.
10.5 Corrections and additions that prove necessary until the handover of the agreed service due to organizational and programming deficiencies for which the contractor is responsible shall be carried out by the contractor free of charge.
10.6 Costs for assistance, misdiagnosis as well as elimination of errors and malfunctions for which the client is responsible as well as other corrections, changes and additions shall be carried out by the contractor at a charge. This shall also apply to the elimination of defects if program changes, additions or other interventions have been made by the client themselves or by third parties. In any case, the client shall be liable for costs resulting from (error) analyses in which no error in the software could be proven.
10.7 In any case, the client shall be liable for costs incurred by the contractor due to (error) analyses in which no error in the software could be proven.
10.8 Furthermore, the contractor shall not assume any warranty for errors, malfunctions or damages that are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are required, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage.
10.9 The contractor shall not provide any warranty for programs that are subsequently modified by the client's own programmers or by third parties.
10.10. If the subject of the order is the modification or supplementation of already existing programs, the warranty shall refer to the modification or supplementation. The warranty for the original program shall not be revived thereby.
10.11. Warranty claims shall become statute-barred six (6) months after delivery.
11.1 The contractor shall be liable to the client for damages demonstrably caused by him only in case of gross negligence. This shall apply mutatis mutandis to damages caused by third parties engaged by the contractor. In the event of personal injury for which the contractor is responsible, the contractor shall be liable without limitation.
11.2 Liability for indirect damages - such as lost sales or profit, costs associated with a business interruption, loss of data or claims by third parties - is expressly excluded. If the object of performance has a defect at the time of the transfer of risk, a rectification and/or subsequent delivery option shall be expressly deemed to have been agreed.
11.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the damaging party.
11.4 If the contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor shall assign these claims to the client. In this case, the client shall give priority to these third parties.
11.5 If data backup has been expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from Section 8.2.iii, but shall be limited for the recovery of data to a maximum of 10% of the order sum per case of damage, but not more than EUR 15,000. Any further warranty claims and claims for damages of the client other than those specified in this contract - irrespective of the legal grounds - shall be excluded.
11.6 Warranty shall be granted exclusively for those delivery contents which are stated in the last signed project report, the "Project Report". The Project Report replaces contractual items of this offer.
11.7 Error analyses are subject to a charge if no error is detected. Errors are defined as being able to be proven for functions that have been clearly recorded in writing in the project or delivery report. In case of doubt, the simplest implementation of a function shall in any case always be considered sufficient.
11.8 The effective date for the warranty claim shall be the date of signature of the final Project Report after final delivery and acceptance of work packages.
11.9 In order to ensure the success of the project, it is agreed that services shall always be provided at the lowest possible cost, whereby the agreed functionalities can still be achieved in the sense of an MVP. Any service for which warranty claims can be made is therefore explicitly stated in the project or delivery report and there is no implicit functionality or side agreements.
The contracting parties commit themselves to mutual loyalty. They shall refrain from any enticement and employment, including through third parties, of employees who have worked on the realization of the orders of the other contracting party for the duration of the contract and 12 months after the termination of the contract. The contracting party violating this provision shall be obliged to pay liquidated damages in the amount of one year's salary of the employee.
13.1 The contractor shall oblige its employees to comply with the provisions pursuant to Section 6 of the Data Protection Act.
13.2 The services included in offers, project and delivery reports shall include preparations and best practices regarding the DSGVO or the DSG. In general, however, it is the customer's responsibility to ensure the operation of the solution, app or platform in accordance with the legal provisions.
13.3 The contractor shall collect and process personal data of employees of the customer (such as name, date of birth, e-mail) in the course of the contractual relationship, if applicable. The customer expressly agrees to the collection and processing of this data with the following "BYTEPOETS contractual partners": Nextcloud GmbH (BYTEPOETS Nextcloud, self-hosted), Apple (iCloud, Pages, Numbers, Keynote), Google and Alphabet (Google Drive, Google Sheets) and Microsoft (Office 365). In addition, the customer has obtained individual consents from its employees, if necessary, in accordance with the DSGVO and shall make these available to the contractor within ten working days of the request, if required.
13.4 The above-mentioned data shall be used exclusively for the performance of the contract and shall only be passed on to contractual partners in anonymized or pseudonymized form. The data shall be deleted from the services used by the contractor immediately after the end of the cooperation.
14.1 Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall cooperate to find provisions that comes as close as possible to the invalid provisions.
14.2 The present AGB have been drawn up on the basis of the templates of the WKO for IT service providers, see https://www.wko.at/branchen/information-consulting/unternehmensberatung-buchhaltung-informationstechnologie/it-dienstleistung/Allgemeine_Geschaeftsbedingungen_.html.
15.1 Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall be governed exclusively by Austrian law, even if the order is executed abroad. For any disputes, the local jurisdiction of the court having subject-matter jurisdiction for the contractor's place of business shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act (Konsumentenschutzgesetz), the above provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide for other provisions.
15.2 Mediation clause: In the event of disputes arising from this contract which cannot be settled by mutual agreement, the contracting parties mutually agree to involve registered mediators (ZivMediatG) specializing in business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of business mediators or on the content, legal action will be taken at the earliest one month after the failure of the negotiations. In the event of a mediation that does not materialize or is terminated, Austrian law shall apply in any legal proceedings that may be initiated. All necessary expenses incurred as a result of a previous mediation, in particular also those for a legal advisor, can be claimed as "pre-litigation costs" in court or arbitration proceedings as agreed.
