Gadollaplatz 1, 8010 Graz, Austria
as of August 24 2016
1.1 These general terms and conditions of the company BYTEPOETS GmbH (hereinafter referred to as BYTEPOETS) apply for all legal transactions, i.e. for all services which BYTEPOETS provides for the contract partner, customer, supplier and/or principal (hereinafter referred to as contract partner).
1.2 They also apply for future transactions and additional agreements, also if this is not expressly referred to.
1.3 The contract partner’s general terms and conditions are expressly not part of the contract, also if BYTEPOETS has not expressly objected to it.
1.4 In each case the version of the terms and conditions involved in the transaction at the time of the conclusion of the contract is authoritative.
1.5 Amendments require the express written consent of BYTEPOETS in order to be valid and only apply for the particular individual commercial transaction.
1.6 If individual provisions of the contract or these terms and conditions should be ineffective, the effectiveness of the remaining provisions shall not be affected. The ineffective provision is to be replaced with a valid provision which comes as close as possible to the sense aimed for and the economic purpose.
1.7 The contract language is German. The contract terms, all other information, customer service and complaint handling are offered generally in German.
2.1 The necessary preparations, as well as the provision of services required for that, are made at the cost and risk of the contract partner.
2.2 It is possible to carry out part of the work according to any offer.
2.3 BYTEPOETS is eager to adhere to the agreed deadlines to perform the service as precisely as possible. If unforeseeable circumstances or circumstances independent of the intentions of the parties arise, such as all cases of force majeure, which impede adherence to the agreed deadline for delivery or provision of services, the deadline extends in each case for the duration of these circumstances. These circumstances therefore also give rise to an extension of the deadline if they arise for subcontractors.
2.4 BYTEPOETS is at its own discretion entitled to use, in whole or in part, subcontractors to fulfill the order.
3.1 Quotations are generally free of charge.
3.2 The quotation is drawn up according to the best professional knowledge and gives information of the project volumes to be expected and its costs. The actual costs can differ from the amount given in the quote. As a rule, accuracy of around 25% is assumed. The accuracy is calculated using the difference between the estimated and the actual expenses.
3.3 By signing the quotation, the contract partner grants work to be carried out up to the extent quoted. After granting the order, specifications of the details shall be created for the contract partner by BYTEPOETS on an agile basis. The costs for these specifications amount to at least 9% of the project volume.
4.1 Quotes are fundamentally against payment and shall only be made on the basis of a specification of details. See also Clause 3.3. If no order is granted on the basis of this quote within the period of validity, the costs for specifying details and creating the quote shall be offset.
4.2 Quotes provided by BYTEPOETS are subject to change and non-binding and do not represent an obligation to accept any order. All changes, may they be technical or other, are expressively reserved.
4.3 The contract partner’s orders are the actual quote in the legal sense. The contract does not come into effect until a written order confirmation is dispatched by BYTEPOETS. BYTEPOETS is also entitled to accept orders or jobs in part or to decline without stating reasons.
4.4 BYTEPOETS reserves the right to demand original documents and by mail, i.e. through exclusive dispatch by post, from the contract partner.
4.5 The statements contained in the respective order confirmation or the contract, not the order of the contract partner, shall be exclusively decisive for the contract content.
4.6 Where special permits, licenses or similar are necessary for the effectiveness of the sales contract or the performance of the contract, the contract partner is responsible for obtaining or requesting these. The contract partner must take all measures necessary for the proper performance of the obligations given to BYTEPOETS and meet the latest requirements for the fulfillment of the contract which are not included in the scope of delivery by BYTEPOETS.
5.1 Provided that nothing else is agreed in the contract, the prices given in Euro in the quote apply and do not include value-added tax, unless explicitly stated.
5.2 In the case of an order which differs from the total supply, BYTEPOETS reserves the right to make an appropriate price change.
5.3 As mentioned above, the prices are based on the costs at the time of the first price offer. Should the costs increase on the basis of changed demands or framework conditions up to the time of the performance of the service or while the project is being carried out, BYTEPOETS is entitled to adjust the prices accordingly. The contract partner shall however be informed about this beforehand.
5.4 The contract partner shall be billed according to the actual expenditure for assessments and the creation of quotes. See also § 3 in this regard.
5.5 Travel time shall in principle be offset as work time. Costs for accommodation, board and other travel costs shall in doing so be identified separately and are not part of the costs for travel time.
5.6 If the contract partner wishes or requires the delivery of the source code (development- or design- documentation, sources, files, libraries or the like) of the offered services in the range of software development, a surcharge of 100% on the net costs of any service will be billed. This applies especially to cases when the delivery of the source code and/or the mentioned surcharge is not explicitly mentioned in the quote.
5.7 At termination or a premature end of the project, in case that the full volume according to the commission was not consumed, BYTEPOETS reserves the right to charge the costs of the commissioned order volume, but at least 10% of the remaining volume that has not been consumed. This applies equally to project reports.
5.8 The costs for support provided, diagnosis of errors, remedying defects and failures that are the responsibility of the contract partner, as well as other corrections, revisions and additions are to be carried out by BYTEPOETS and the costs charged to the contract partner. This is also the case for the remedying of errors when program revisions, additions or other interventions have been carried out by the contract partner himself or by a third party.
5.9 Furthermore, BYTEPOETS assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organizational resources and data carriers, insofar as these are stipulated, unusual operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment.
6.1 In agile project management, the contract partner is intensively involved in the planning and quality assurance process. Agile project management is therefore regarded as an object of the contract for each collaboration according to BYTEPOETS’ guidelines (see §7).
6.2 The project shall be repetitive, processed in two-week cycles. This regular cycle is described as Sprint. A Sprint always begins on Monday and ends of Friday of the following week (earlier, not later in the case of public holidays).
6.3 The performance to fulfill the project goal shall be made in so-called User Stories or short Stories and distributed on Sprints together with the partner in planning.
7.1 The stories necessary for implementation shall be defined by the product owner (PO for short) together with the contract partner. These stories are also part of the quote which has to be signed by the contract partner before the beginning of the project or part of the latest version of the project report which has to be signed by the contract partner.
7.2 The BYTEPOETS development team, the Team for short, estimates the stories according to their expenditure in Story Points, SP for short, and provides this estimate to the contract partner.
7.3 The stories estimated in 7.2 shall be prioritised together with the partner before the beginning of Sprint.
7.4 The team works through the stories in order of priority in the course of the Sprint.
7.5 During the Sprint, changes or new requirements made known can be taken into consideration following agreement with the PO if there is a similar (smaller or same) SP number in the current Sprint or any time in the next Sprint. The additional costs through such changes must be paid by the contract partner.
7.6 At the end of each Sprint, the contract partner shall be provided with results which can be checked. The contract partner ensures that the stories communicated have been fulfilled by checking in detail the results with regards to the acceptance criteria of each story. See also §9.
7.7 This process shall be repeated from clause 7.1 to 7.6 until the project has been concluded to the contract partner’s fullest satisfaction, or the SP quota or the budget is exhausted.
7.8 For the expense of the cost estimate (see 7.2) 10% of the whole budget are offset for stories that were not implemented.
8.1 Additional services or changes to an existing order are always required to be in writing and always require a separate order confirmation from BYTEPOETS. The contract partner implicitly agrees to a project extended in this way in the case of changes.
8.2 The contract partner agrees to accept exceeding the mutually planned end date for two Sprints or 25% of the project duration. This shall be communicated to the contract partner immediately, as soon as and if it is apparent. In doing so, the contract partner does not incur any additional costs through BYTEPOETS. BYTEPOETS is not liable for damage occurring to the contract partner as a result of any delay, also no price reduction may be claimed by the contract partner.
8.3 Delivery delays or cost increases arising through incorrect, incomplete, late or subsequently modified disclosures and information or documents provided, are not the responsibility of BYTEPOETS and can not cause a delay for which BYTEPOETS is responsible. Corresponding additional costs shall be borne by the contract partner.
8.4 In doing so, BYTEPOETS is in principle indemnified and held harmless from and against.
9.1 A project is regarded as concluded if BYTEPOETS has carried out and delivered all the activities or stories defined in writing with the contract partner for fulfilling the order, free from defects, or if the quality of Stories is assured, they are accepted and delivered or the contingent of SP or the budget is exhausted.
9.2 A User Acceptance Test, UAT for short, shall be used by the contract partner to verify that the delivery is free from defects. BYTEPOETS guarantees the contract partner a period of ten work days for the UAT after each part delivery of stories, after concluding each Sprint as well as after concluding all stories or activities to perform the order.
9.3 The UAT shall be carried out by the contract partner directly following each delivery. Within the ten work days period the contract partner has to send BYTEPOETS a list with defects. The list of defects is required to be in writing and is to be sent to BYTEPOETS by mail, fax or email. It is requested that the contract partner’s legally binding signature is used.
9.4 Should BYTEPOETS not receive a signed list of defects after the expiry of 10 days following delivery, the delivery or the order is regarded as fulfilled and approved.
9.5 The contract partner has the possibility to accept the order as approved before the expiry of the above mentioned deadlines. Approval before the deadlines is also required to be in writing.
9.6 Services which are not consumed within six months as well as offered services without expiration are deemed to be consumed after a 12 months period, if the contract partner does not explicitly claim them as not consumed. In any case not consumed services as well as offered services without expiration are deemed to be consumed after a 24 months period und can be consumed or posted by BYTEPOETS as administrative expenses when necessary.
9.7 If the contract partner fails to fulfill obligations to co-operate or duties at the agreed dates or to the agreed extent, the services provided by BYTEPOETS shall be deemed rendered despite possible limitations.
10.1 The contract partner, with regard to copyright, guarantees that all text elements, graphics, photos, designs, copyrights or other artworks which are provided are the property of the contract partner or that the contract partner may use them. BYTEPOETS is not liable for damage caused due to the fact that data provided by third parties, which BYTEPOETS has taken for adaptation, storage or forwarding, are misused.
10.2 Resources which are required for the contract fulfillment but not commissioned shall be provided by the contract partner or commissioned separately. This includes not exclusively, but in particular: access data to existing hosting, databases or web services; localised texts and descriptions as well as localised graphics or logos.
10.3 Unless otherwise contractually agreed, the services of BYTEPOETS with regard to the offered, developed or delivered individual delivery items such as text, graphics, apps or websites, refer only to the granting of an unlimited (except for the exploitation right against third parties) non-transferable exploitation license. In this case BYTEPOETS retains the unlimited right to exploit the services and delivery items for internal usage and towards third parties. Therefore the contract partner only purchases the license to use results of the ordered services but not the ownership of any delivery items. This applies in particular to the delivery of source code as well as to the transfer of rights to source codes (for software development) or other source data such as Photoshop files, Indesign files or Sketch files (for design services), plans, drawings or samples, etc. Deviations from these agreements need to be explicitly stated in all quotes and all project reports before the project starts.
10.4 The contract partner shall strictly comply with the associated license regulations of the respective developers or rights holders when using software that requires a license and has been delivered to the contract partner by BYTEPOETS.
10.5 The shipment of program carriers, documentation, and performance specifications shall be at the expense and risk of the contract partner. Should the contract partner wish further training and elucidation, these will be billed separately. Insurance will be taken out only at the request of the contract partner. Unless otherwise agreed upon, BYTEPOETS is neither under an obligation to provide a user-project manual or other documentation, nor to hold trainings or courses.
11.1 Payments are, unless otherwise agreed, due on the date the invoice is received without any deduction in EURO (€).
11.2 In the case of orders which include several units, BYTEPOETS is entitled to make part invoices for which the payment terms and conditions established for the full order also apply./p>
11.3 A payment is regarded as performed on the day on which BYTEPOETS can dispose of them.
11.4 The contract partner is not entitled to retain or offset payments because of guarantee claims or other counterclaims.
11.5 In the case of contract partners outside Austria, the payment is made in principle in advance.
11.6 If the contract partner defaults on an agreed payment or other service from this or other transactions, BYTEPOETS can, without affecting its other rights,
(a) postpone the fulfillment of its own obligation until completion of this payment or other service and claim an appropriate extension to the performance deadline,
(b) make payable all open claims from this or other transactions and credit interest for delay amounting to 8% above the basic rate of interest for these amounts from the particular due date, provided that BYTEPOETS does not prove costs going beyond this.
11.7 In each case, BYTEPOETS is entitled to charge pre-court costs, in particular dunning fees and lawyer fees.
11.8 If the payment deadline is exceeded, fees shall be charged in addition to the interest for delay:
(a) For the payment reminder “M1” a reminder fee of € 19.00
(b) For the second reminder “M2” a reminder fee of € 29.00
(c) For the final reminder “M3” a reminder fee of € 49.00.
11.9 Before the beginning of the project, payments from 10% up to 50% of the project volume shall be charged in the form of a deposit.
11.10 The day on which BYTEPOETS confirms the availability of this deposit to the contract partner is regarded as the beginning of the project. This confirmation is made in writing without exception.
11.11 It is agreed that a part invoice can be made every two weeks. The extent of this part invoice includes at least all those payments or stories which have been delivered in the last two weeks.
11.12 Defaults in payment increase the project’s planned time from receipt of order till delivery by at least the duration of the delay.
12.1 BYTEPOETS is entitled and obligated to remove inaccuracies and defects in its performance which it becomes aware of, regardless of fault. BYTEPOETS shall inform the contract partner about this immediately.
12.2 This claim for the contract partner expires six months after performing the particular service. If the contract partner is a consumer in the sense of the “Konsumentenschutzgesetz” [law on consumer protection], the above mentioned period expires within two years.
12.3 This limited guarantee does not apply for software and services which have been provided free of charge. This includes updates, preliminary or test versions, websites and online services, or software or services which have been changed by the contract partner or third parties; BYTEPOETS in this case fully excludes the guarantee.
12.4 Liability for data loss is by derogation from point 13.1 not excluded only if data backup is explicit (part of) the service, but for the restoration of the data limited to maximum 10% of the order amount per claim, but maximum EUR 15,000.00. Any claims by the contract partner beyond the warranty and damage claims expressly listed in this contract, on whatever legal grounds, shall be excluded.
12.5 In order to make a guarantee claim for products, the contract partner must return the software during the period of limited guarantee, providing the purchase receipt to the dealer from which the software was purchased.
12.6 In order to make a guarantee claim for services or functions performed through service in the sense of the agile software development (Stories), the contract partner must prove defects during the period of limited liability as follows:
(a) The framework conditions for the extent of the test as well as the operating system and the hardware noted in the quote are regarded as the basis on delivery.
(b) It is assumed that the most technically efficient or easiest way will be taken in order to fulfill a requirement. There are therefore expressly no implicit functions or acceptance criteria.
(c) Defects can expressly only be claimed with reference to written recorded User Stories and their acceptance criteria.
12.7 In case of legally justified warranty claims, BYTEPOETS is entitled to satisfy these claims by improvement or replacement of the service provided. Only if an improvement or replacement is not possible or it would be associated with disproportionate high costs for BYTEPOETS, or BYTEPOETS will not be able to or not able within reasonable time limits to improve or replace the service provided, the contract partner has the right to demand price reduction or terminate and rescind the contract. BYTEPOETS shall have a warranty obligation only if the contract partner has completely fulfilled his payment obligations. Warranty claims do not entitle the contract partner to withhold stipulated payments. Warranty assumption for ensuring that the delivered software meets the requirements of the contract partner, that it is suited for interoperation with other programs of the contract partner, or that all software errors can be fixed, is excluded in all cases.
13.1 BYTEPOETS is liable to the contract partner for damages – beyond the product liability law (Produkthaftungsgesetz) – only in cases of intent or gross negligence. This also applies mutatis mutandis for damages which originate from third parties called in by BYTEPOETS. BYTEPOETS excludes any success liability and is in any case only liable for the common value of the ordered goods/ services of the contract partner. Furthermore BYTEPOETS is only liable for typical and foreseeable losses, i.e. those which may be reasonably anticipated, taking into account the circumstances it was aware of at the time of entering into the contract. Claims for defects and consequential damage as well as damages for which the contract partner can obtain cover from the insurance market, or which are within the contract partner’s control, from other direct damages and losses or loss of profits as well as general financial loss, especially from defective delivery, omitted delivery, or delay in delivery, are explicit excluded. The compensation under the product liability law is aligned to legal provisions related to limitation periods. Recourse claims within the meaning of § 12 of the product liability law are excluded unless the party entitled to recourse proves that the error was caused within BYTEPOETS area of responsibility and with at least gross negligence. A liability for ensuring that the delivered software meets the requirements of the contract partner, that it is suited for interoperation with other programs of the contract partner, or that all software errors will be fixed, is excluded in all cases.
13.2 Claims for compensation for damages by the contract partner can only be made judicially within six months from knowledge of the damages and the tortfeasor, but at the latest within three years after the event establishing the claim.
13.3 The contract partner is in each case to provide evidence that the damages are attributed to the fault of BYTEPOETS.
13.4 Provided that BYTEPOETS performs the service with the assistance of third parties and guarantee and/or liability claims arise in this connection against these third parties, BYTEPOETS assigns these claims to the contract partner. The contract partner shall in this case hold priority to these third parties.
13.5 BYTEPOETS shall accept no responsibility for the economic success of the ordered and implemented project and accepts no corporate risk. The contract partner alone is responsible for any profit or losses that result from the implemented project.
14.1 The copyrights to those works created by BYTEPOETS and its employees and commissioned third parties (in particular quotes, cost estimates, reports, analyses, experts’ reports, organisation plans, source code, programs, performance descriptions, drafts, calculations, drawings, data carriers, presentations, etc.) remain with BYTEPOETS. They may be used by the contract partner during and after the contract relationship exclusively for the purposes included in the contract.
14.2 The contract partner is in this respect not entitled to copy and/or distribute the work (or works) without express consent from BYTEPOETS. BYTEPOETS is in no way liable vis-à-vis third parties when the work is copied/distributed without authorisation, in particular for the correctness of the work, for instance.
14.3 BYTEPOETS can demand the return of all documents listed above and these are in any case to be returned to BYTEPOETS immediately and without being asked if the contract does not come into force.
14.4 Breach of these provisions by the contract partner entitles BYTEPOETS to immediately terminate the contractual relationship prematurely and to make other statutory claims, in particular for omission and/or compensation for damages.
15.1 The contract partner is obligated to maintain confidentiality over the knowledge he receives from the commercial relationship vis-à-vis third parties.
15.2 BYTEPOETS is obligated to keep quiet for an unlimited period about all commercial matters made known to it, in particular trade and business secrets as well as any information which contains the type, scope of operations and practical activity of the contract partner.
15.3 BYTEPOETS is further obligated to maintain confidentiality vis-à-vis third parties over the entire content of the work as well as all information and circumstance which are accessible to it in connection with the creation of the work, in particular also data from clients of the contract partner.
15.4 BYTEPOETS is not bound to maintain confidentiality vis-à-vis necessary assistants and representatives who serve it. It is however also to impose the obligation of confidentiality in full and is liable for their breach of the obligation as if it breached it itself.
15.5 The obligation of confidentiality also extends without limit beyond the end of this contractual relationship.
15.6 The contract partner allows BYTEPOETS to copy the concluded project as part of BYTEPOETS’ portfolio, create links to it or to use parts of it for the purposes of BYTEPOETS’ own advertising free of charge, also following the end of the contract period.
15.7 With the agreement of the contract partner, BYTEPOETS is entitled to discreetly place its signature, logo or other marking common in the trade on the BYTEPOETS website for contents which have been created for the contract partner.
16.1 BYTEPOETS is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The contract partner guarantees BYTEPOETS that all necessary measures in this regard, in particular those in the sense of the law on data protection (Datenschutzgesetz), such as declarations of consent, have been taken.
16.2 In addition it is explicitly stated that names, addresses, telephone and fax numbers and e-mail addresses, as well as payment terms of the contract partner will be saved on data carriers by means of electronic data processing (accounting, customer list) to fulfill the contract. Data of the contract partner shall not passed to third parties, except in cases where it is necessary for the fulfillment of the contract.
17.1 The contract partner is obligated to inform BYTEPOETS immediately about changes in its contact details, especially in its contact address, insofar as the legal transaction which is the object of the contract is not completely fulfilled by both sides.
17.2 If the contract partner omits to provide this information, statements are also considered received if BYTEPOETS sent them to the last known address.
20.1 The factually responsible Austrian court in the location of BYTEPOETS (8010, Graz) is agreed as the court of jurisdiction for all disputes arising directly or indirectly from the contract. BYTEPOETS is however also entitled to apply to another court responsible for the contract partner.
20.2 For all claims made because of disputes arising from this contract against a consumer who is domiciled, has his normal residence or place of business domestically, a court in the administrative district where the consumer is domiciled, has his ordinary residence or place of business is responsible. For consumers who at the time of the conclusion of the contract are not domiciled in Austria, the statutory jurisdictions apply.
21.1 The parties to the contract confirm that they provided all statements in the contract diligently and truthfully and are obligated to inform one another about necessary changes immediately.
21.2 Changes to the contract and these general terms and conditions are required to be in writing; this also applies to deviations from this requirement of writing. There are no oral subsidiary agreements.