GENERAL TERMS AND CONDITIONS OF BUSINESS
of Gruber & Petters GmbH
for entrepreneurs and educational institutions
(Valid as at 1 January 2015)
Any business transactions concluded between Gruber & Petters GmbH, A-2000 Stockerau, Belvederegasse 11, entered into the commercial register at the Provincial Court of Korneuburg under file number FN 196828d (hereinafter referred to as “G&P”), and entrepreneurs within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz) (Federal Law Gazette 1979/140 as amended from time to time), hereinafter referred to as “Contracting Parties”, shall be exclusively subject to the following General Terms and Conditions of Business (hereinafter referred to as “GTC”).
These General Terms and Conditions of Business (GTC) shall be binding for any and all present and future business transactions between G&P and Contracting Parties pursuant to para. 1.1, unless they have been changed or excluded by an explicit written agreement (framework agreement) with G&P. Any and all Contracting Parties agree that should they use their own general terms and conditions, the GTC of G&P shall prevail in case of doubt, even if G&P does not object to such general terms and conditions of the Contracting Party.
Any provisions diverging from or supplementing these GTC, including without limitation any general terms and conditions of business or purchase of Contracting Parties, shall only become a part of the contract if explicitly agreed to by G&P in writing. Any acts by G&P in performance of the contract shall therefore not be deemed consent to such contract terms that deviate from these GTC.
Should these GTC be changed, G&P shall inform all Contracting Parties of the changes made and make the new version of the GTC available for download on the website www.grupet.at or G&P’s respective current homepage. Such changes shall be deemed accepted if the Contracting Party does not object thereto in writing within 2 (two) weeks after delivery of notification of the changes to the GTC.
All Contracting Parties shall be explicitly informed of such right to object in the notification of the changes to the GTC. In addition, these GTC or the most recently amended version may be requested in writing from G&P’s headquarters at any time or be retrieved from the website www.grupet.at or G&P’s respective current homepage.
Reference is specifically also made to the provisions of G&P’s respective valid price lists as well as the license terms attached to the products, with such price lists and license terms forming an integral part of the contracts to be concluded.
2. OFFERS and CONCLUSION OF CONTRACT, QUOTATIONS
Any G&P offers, quotations and sales documents, including for example all price lists, are subject to confirmation and are not binding unless specifically marked as binding. Any declarations and/or offers made by a Contracting Party as well as all orders only have legal effect if explicitly confirmed by G&P in writing, or by e-mail or fax. The same applies to supplements, changes or side agreements. All of the above refers to offers, declarations of acceptance, any other declarations and contracts already concluded. The provision of brochures or price lists by G&P does not constitute a declaration of contract nor obligate G&P, in particular, to deliver goods or provide services.
Any deviations, in terms of technology and design, from any information given in illustrations, drawings, brochures or other service specifications that are factually justified and/or minor and/or can be reasonably expected from the Contracting Party, and are made as a result of technical progress and further development are expressly reserved, without giving rise to any rights vis-à-vis G&P.
G&P shall have the right to resign from the contract should any circumstances arise or become known revealing that the Contracting Party is not creditworthy or that payment of the purchase price will be or is jeopardised.
G&P shall draw up its quotations to the best of its knowledge but assumes no guarantee for their accuracy. In this connection G&P, however, undertakes to notify the Contracting Party of any errors and to revise the offer within a period of not more than 14 days after receipt of a declaration of acceptance relating to an incorrect offer made by G&P. On the basis of the revised offer, the Contracting Party may subsequently decide again whether or not it wants to enter into a contract with G&P under these revised conditions. Unless explicitly agreed otherwise, G&P shall, as a rule, draw up quotations free of charge.
Unless otherwise agreed with the Contracting Party on an individual basis, G&P may charge suitable rates for changes to orders or for additional orders.
3. SCOPE OF SERVICES
G&P develops software products that are regularly updated and/or further developed on a continuous basis in line with technical progress. In connection therewith, G&P offers its Contracting Parties relevant training programmes in regular intervals.
Unless otherwise agreed, G&P shall provide these services, at its discretion, at the location of the computer system or on the premises of the Contracting Party during G&P’s normal working hours. In the event that the Contracting Party requests that services be provided outside normal working hours, any additional expenses shall be charged separately. G&P shall be entitled to entrust third parties with the provision of its services or the fulfilment of its obligations; G&P shall be responsible for the conduct of such third parties as for its own.
G&P undertakes to fulfil these services in accordance with the agreed scope of services unless any circumstances that cannot be influenced by G&P preclude this. To the extent that the provision of services by G&P depends on the participation of the Contracting Party, such services shall only be rendered if the Contracting Party has met its obligations and has not delayed in performing its duties
4. PRICES and TERMS OF PAYMENT
Unless explicitly indicated otherwise by G&P, all prices are net prices in euros. The applicable statutory VAT amount shall therefore always be charged additionally, unless a transaction is exempt from VAT. Any contractual or other fees shall always be paid by the Contracting Party.
The current price list of G&P shall be applicable at all times. Such price lists shall be valid until revoked and/or until the respective Contracting Party is informed of a new valid price list.
Any services, including the (introductory) training of the Contracting Parties’ employees, shall be charged in accordance with the currently valid services price list. G&P shall, as a rule, perform such services only during the following support hours: Monday through Thursday from 9.00 a.m. to 4.00 p.m. and Friday from 9.00 a.m. to 1.00 p.m. In exceptional cases, other hours may be agreed as well. G&P’s corresponding surcharge shall be determined on a case-by-case basis. Any travel and subsistence expenses incurred in performance of a service contract shall, as a rule, be borne by the Contracting Party, in addition to the price agreed, unless otherwise agreed with G&P on an individual basis.
In the case that payment in instalments has been agreed, a date of payment is deemed not to have been met (default) even if only one instalment is made late or not in the full amount. Upon such default, the entire outstanding remainder shall become due and payable immediately. In case of default, G&P shall have the right to take into custody any software or other goods delivered subject to reservation of ownership, without resigning from the sales contract, until the entire amount due, including any ancillary costs, has been paid in full.
G&P retains title to all software and goods until payment in full.
5. DELIVERY and SERVICES
G&P takes every effort at all times to observe the agreed dates of performance and/or delivery as closely as possible. In the event that G&P is more than six weeks late in delivery, the Contracting Party may resign from the contract, to the exclusion of further claims, after granting G&P a reasonable grace period (of at least three weeks) in writing. Any claim by the Contracting Party to damages for delay in delivery is excluded for slight negligence (the burden of proof is with G&P’s Contracting Party) – with the exception of personal injury as well as any damage to property held for processing or taken into custody; in either case liability is limited to the amount of the foreseeable damage, however, to a maximum of 5% of the delivery value.
The scheduled dates of performance can only be observed if the Contracting Party fully makes available all necessary work, facilities and documents on the dates indicated by G&P and meets its obligation to participate to the extent required.
Any delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed data and information or documents provided by the Contracting Party are not within G&P’s responsibility and shall not lead to a delay on the part of G&P. Any additional costs resulting therefrom shall be borne by the Contracting Party.
In the case of orders comprising several units or systems, G&P shall be entitled to effect part deliveries and issue partial invoices.
6. TERMS OF PAYMENT
Unless otherwise agreed in any given case, any invoices made out by G&P (including VAT, if applicable) shall be payable no later than three weeks after receipt, without any deduction and free of charges. The terms of payment determined for the overall contract shall apply mutatis mutandis to partial invoices. G&P reserves the right to effect deliveries to Contracting Parties only against advance payment.
In the case of orders comprising several units, G&P shall be entitled to issue separate invoices after delivery of each individual unit or service.
Observing the agreed dates of payment shall constitute a material condition for the execution of delivery and/or performance of contract by G&P. Failure to make the agreed payments shall entitle G&P to terminate any ongoing work and to resign from the contract. Any and all costs connected therewith as well as any loss of profit shall, in such case, be borne by the Contracting Party.
In the case of payment default, interest at a rate of 8% p.a. above the base rate of Oesterreichische Nationalbank valid at such time shall be charged. In case of default, G&P reserves the right to charge a handling fee of EUR 5.00 for each reminder. If a collection agency intervenes, the Contracting Party shall bear the appropriate cost of an intervention or, in case legal action is taken, the cost of legal representation at standard rates.
The Contracting Party may only offset any claims and/or receivables by G&P against such claims determined by a court or explicitly acknowledged by G&P in writing. Any further set-off of claims by G&P against any counterclaims whatsoever by the Contracting Party shall be explicitly excluded
G&P warrants that the contractual products are free from any material defects, including without limitation to the lack of guaranteed quality. However, both parties acknowledge that with state-of-the-art technology it is not possible to exclude software errors under all operating conditions.
G&P warrants that the contractual products are, as a rule, described in a generally accurate manner in the product information and manuals communicated by G&P and are fit for use in these areas. However, the technical data and descriptions given in the product information or in a manual do not constitute a guarantee of quality.
In particular, any illustrations (such as screenshots, etc.) or descriptions provided in product information or manuals may slightly vary from the actual appearance of the most recent version of a piece of software. Provided that the functionality of the programme is not impaired, no warranty claims may be derived therefrom.
A guarantee of quality within the meaning of the law only exists if the relevant information provided by G&P to the Contracting Party has been explicitly confirmed in writing. G&P does not warrant that the programme functions satisfy the Contracting Party’s requirements and/or function well in any combination with other products.
If any defects are detected during contractual use, the Contracting Party shall give written notice of such defects to G&P without delay, i.e. within seven days, in a comprehensible form, indicating the information expedient for troubleshooting.
Warranty claims shall not apply if the software has been installed incorrectly by the Contracting Party or any third party authorised by it or if, without the written approval of G&P, the Contracting Party or any third party not explicitly authorised by G&P uses a third-party programme (software not produced by G&P) to make software modifications of stored data, unless the Contracting Party proves that these circumstances were not the cause of the defect.
Even if diligently and duly installed software is used, problems of an unforeseeable nature may still arise. If such unforeseeable problems or errors related to G&P’s software occur, the following actions will be taken depending on the gravity of the defect:
If serious defects – these are defects that impede operations, in other words, material programme functions are not available at all as a result of the defect – are detected, G&P undertakes to start removing the defect immediately after the customer has lodged a written complaint in respect of the defect. In the event of such serious defects, a warranty period of two years after delivery shall apply.
If medium defects – these are defects that cause a severe impairment of the programme’s functionality but do not impede the execution of material functions – are detected, G&P undertakes to start removing the defect within six months at the most after notice of the defect has been given by the customer. In the event of such medium defects, a warranty period of 18 months after delivery shall apply.
If minor defects – these are defects that cause only minor or no impairment of the programme’s functionality so that the programme is, as a rule, available in all of its designated functions – are detected, G&P shall not be obligated to remove the defect. For such minor defects any warranty shall be explicitly excluded.
Software errors are eliminated by G&P as a priority and, if possible, by making an update that is made available to all Contracting Parties concerned free of charge. This shall apply in particular if the defect is detected within six months after delivery of the software to the Contracting Party and has been brought to the attention of G&P in a complaint.
It is the responsibility of the Contracting Party to furnish proof of the existence of defects. Section 924 of the General Civil Code (ABGB) shall not apply.
In the event of warranty, G&P may choose whether to correct the defect, exchange the goods or take them back against repayment of the purchase price. If G&P does not remove a defect within a reasonable grace period specified in writing, the Contracting Party shall be entitled either to demand cancellation of the contract or to receive an adequate price reduction. Any correction and/or removal of defects is either carried out at G&P’s place of business, at the respective manufacturer or a third party to be named, at the discretion of G&P.
Warranty claims against G&P may only be asserted by the direct Contracting Party and shall not be assigned or otherwise transferred.
With the purchase of a software product from G&P, each Contracting Party is entitled to receive support from G&P when using this software for one year (starting from the date of purchase) as follows: G&P operates a support hotline at the hours specified in para. 4.3 (Monday through Thursday from 9.00 a.m. to 4.00 p.m. and Friday from 9.00 a.m. to 1.00 p.m.); for one year after the purchase of a software licence each Contracting Party may submit up to five questions by e-mail (including transmission of data) and, in addition, ask up to five questions over the telephone free of charge. Such questions will be answered and/or processed as soon as possible by G&P or the regional consultant.
9. LIMITATION OF LIABILITY
Unless otherwise resulting from these GTC, G&P shall only be liable for any damage caused by intent or gross negligence on the part of its employees. The degree of culpability shall be proven by the Contracting Party. G&P’s liability for slight negligence, indirect damage, loss of profit, loss of interest, savings that did not materialise, consequential damage and financial loss, damage from third-party claims as well as for the loss of data and programmes and their restoration shall, as a rule, be excluded. The only exception therefrom is personal injury, for which G&P shall also be liable in the case of slight negligence.
Claims for damages shall be subject to a limitation period of 12 months after learning of the damage and the party causing the damage, in any case within five years after G&P has provided the service or made the delivery.
Provided that a penalty to be paid by G&P has been agreed in any case whatsoever, such penalty may be reduced by a court order and no damages in excess of the penalty amount may be asserted.
Should any text messages be sent via or about a G&P product (piece of software), the liability provisions specified in para. 9.1 shall only apply to those events up to (and including) the transmission of the text message to the text message service provider. Such text messages shall be sent via an established text message service provider. G&P shall not be liable for any damage or other loss whatsoever suffered by a Contracting Party or its customer or third party as a result of the incorrect forwarding of such message by the provider, provided that G&P has sent the content (text) of the text message, including all data required for the correct forwarding, in particular the correct phone number(s), to the service provider in a correct manner.
Reference is made to additional liability provisions specified in paras. 10.1 to 10.3.
10. DATA SECURITY and DATA PROTECTION
G&P shall be entitled to store any data concerning the Contracting Party and obtained in connection with such business relations, within the meaning of the Data Protection Act, to process such data electronically and to use it for internal promotional purposes. This data pertaining to the Contracting Party shall not be disclosed without the written approval of the Contracting Party.
In this connection, G&P shall make every adequate, state-of-the-art effort in order to protect the customer data stored at G&P. G&P shall, however, not be liable in the event that any third parties unlawfully take control of, and use, such data. Any assertion of claims for damages on the part of the Contracting Party or any third parties vis-à-vis G&P for any such reason shall be excluded by mutual consent.
The Contracting Party shall be obliged to perform regular state-of-the-art data backups. G&P assumes no liability whatsoever for any loss of data.
G&P shall always carry out a virus check of any data storage devices before delivery to the Contracting Party. G&P shall not assume any liability for any internet virus attack suffered by the Contracting Party.
As a rule and unless explicitly agreed otherwise on an individual basis, both parties hereto shall observe the provisions of the Data Protection Act applicable to them.
11.1 The parties hereto mutually and irrevocably undertake to keep confidential and secret and not to disclose to any third party in any manner whatsoever, without the approval of the respective other party, all trade and business secrets obtained within the scope of the contractual relationship as well as any other knowledge of data and information concerning the respective other party, of which they have gained knowledge or have been informed. Therefore, the parties hereto shall take all necessary precautions to prevent any non-authorised disclosure or use of such confidential information on the part of employees, subcontractors or other "Erfüllungsgehilfen" (translator’s note: employees in performance of their obligations; sec. 1313 a of the Austrian General Civil Code ["ABGB"]).
This secrecy obligation shall remain in force and effect for another five years after termination of this contractual relationship. In the event of a violation of this obligation, a contractual penalty of € 15,000.00 (fifteen thousand euros) shall become due and payable. G&P explicitly reserves the right to determine higher penalties in individual contracts.
This secrecy obligation shall not apply to any information that is in the public domain or has previously been known to the parties hereto or that must be disclosed due to legal provisions or any orders from government institutions, in the latter case, however, not before the facts of the matter have been communicated to the respective other party in writing.
12. INTANGIBLE PROPERTY RIGHTS
The Contracting Party shall not acquire any of G&P’s intellectual property or trademark rights whatsoever, with the exception of the right to utilise the software acquired from G&P exclusively for its own use.
G&P guarantees the Contracting Party that the possession or use of its software does not violate any intangible property rights of third parties and that G&P has no knowledge of the existence of such rights that may be violated by the possession or use of its software.
G&P shall not be liable for any violation of intangible property rights of third parties as a result of any changes made to G&P’s software by the Contracting Party.
By using G&P’s software which is subject to licensing, the Contracting Party undertakes to agree to the relevant software licensing terms of which it will be informed by G&P during installation or which will be made available in English upon request.
13. JURISDICTION and CHOICE OF LAW
Any and all disputes arising in connection with a contract with G&P, including the issue of the valid creation of such contract and any effects prior to and following its conclusion, shall be exclusively settled by the competent court having subject-matter jurisdiction, as well as territorial jurisdiction for the registered seat of G&P.
This contractual relationship, including the issue of the valid creation of this contract and any effects prior to and following its conclusion, shall be exclusively subject to Austrian substantive and adjective law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention).
If any provision of these GTC is or becomes partially or wholly legally ineffective or unenforceable, the legal effectiveness or enforceability of the other provisions of these GTC shall not be affected thereby. The parties hereto agree to replace the ineffective or unenforceable provision by an effective or enforceable provision that comes as close as possible to the content and purpose of the ineffective or unenforceable provision.
Any and all amendments to or modifications of any contract with G&P shall be valid only if made in writing. This formal requirement may only be waived in writing.
No act or omission by a party hereto shall constitute a waiver of any rights unless such waiver is explicitly declared in writing.
The English translation of these General Terms and Conditions of Business is provided solely for convenience. Only the original German text is legally binding.