1.1 The following terms and conditions apply to all products and services of Fasky OG, hereinafter referred to as Fasky.
1.2 Terms and conditions of the customer will never become part of the contract between Fasky and the customer even without express objection.
1.3 Deviations from these terms and conditions and/or amendments as well as changes and amendments of concluded contracts and the applicable terms and conditions of Fasky must be made in writing. This shall also apply to any waiver of this written form clause.
1.4 All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company’s instructions and are only binding to the extent stated in the order confirmation. The customer’s conditions of purchase are hereby excluded for the present legal transaction and the entire business relationship. Offers are generally subject to change without notice. Changes for individual cases need to be explicitely confirmed by the company Fasky. Even if some parts of this terms are void, the remaining parts are still valid.
2. Performance and inspection
2.1 The subject of an order may be: Creation of individual programs, Acquisition of usage rights for software products, program maintenance, Consulting activities, holding of workshops, Other services
2.2 The development of individual organisational concepts and programmes shall be carried out in accordance with the type and scope of the binding information, documents and aids provided in full by the Client. This also includes practical test data as well as test possibilities to a sufficient extent, which the customer makes available on time, during normal working hours and at his own expense. If the customer is already working in real operation on the system made available for testing, the responsibility for securing the real data lies with the customer.
2.3 The basis for the creation of individual programs is the written service description which the contractor prepares or the client makes available on the basis of the documents and information made available to him against payment of costs. This description of services shall be checked by the Client for correctness and completeness and shall be accompanied by a note of consent. Later change requests can lead to separate date and price agreements.
2.4 Individually created software or program adaptations require a program acceptance for the respective program package concerned at the latest four weeks after delivery by the customer. This will be confirmed by the customer in a protocol. (Checking for correctness and completeness on the basis of the service description accepted by the contractor using the test data provided under point 2.2.). If the Customer allows the period of four weeks to elapse without acceptance of the program, the delivered software shall be deemed to have been accepted on the end date of the said period. If the software is used in real operation by the customer, the software shall in any case be deemed accepted. Any defects that occur, i.e. deviations from the performance description agreed in writing, must be reported by the Customer to the Contractor, who shall endeavour to remedy the defects as quickly as possible. If significant defects have been reported in writing, i.e. if real operation cannot be started or continued, a new acceptance is required after the defects have been remedied. The client is not entitled to reject the acceptance of software due to insignificant defects.
2.5 When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
2.6 Should it become apparent in the course of the work that the execution of the order is actually or legally impossible according to the service description, the contractor is obliged to notify the client immediately. If the customer does not change the service description to this effect or creates the prerequisite that execution becomes possible, the contractor can refuse execution. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent change to the service description by the customer, the contractor is entitled to withdraw from the order. The costs and expenses incurred by the contractor up to that point as well as any dismantling costs shall be reimbursed by the customer.
2.7 Program carriers, documentation and service descriptions shall be dispatched at the expense and risk of the Customer. Any additional training and explanations requested by the customer will be invoiced separately. Insurance will only be taken out at the request of the client.
3.1 A detailed quotation is created based on the detail specifications and for valuable consideration. In case the customer takes down the quotation in the time it is valid, the customer has to paid the effort that was needed to create it. Quoations are generally subject to alteration. Only if the partner sends a written signed quotation back to Fasky the project is officially delegated.
4. Prices, taxes and fees
4.1 All prices are quoted in Euro without value added tax. They only apply to the order in hand. The prices quoted are quoted ex the contractor’s place of business. The costs of program carriers (e.g. CDs, USB sticks, hard disks, etc.) as well as any contractual fees shall be invoiced separately.
4.2 For all services (organisational consulting, programming, training, conversion support, etc.), the workload shall be charged at the rates valid on the day the service is provided. Deviations from the time expenditure on which the contract price is based, which is not the responsibility of the contractor, will be charged according to the actual amount incurred.
4.3 In case the partner requests the source code of the software project the price for it is calculated as 30% of the complete project price. Fasky reserves the right to keep the source code in any case it is not explicitly part of the quotation beforehand.
4.4 The costs for travel, daily and overnight allowances shall be invoiced separately to the Customer in accordance with the applicable rates. Travel time shall be deemed to be working time.
5. Delivery date
5.1 The Contractor shall endeavour to meet the agreed deadlines for performance (completion) as closely as possible.
5.2 The desired completion dates can only be met if the customer provides all necessary work and documents in full on the dates specified by the contractor, in particular the performance description accepted by him in accordance with Item 2.3, and fulfils his obligation to cooperate to the extent required. The contractor is not responsible for delays in delivery and increases in costs caused by incorrect, incomplete or subsequently changed data and information or documents made available and cannot lead to the contractor’s default. Any resulting additional costs shall be borne by the Customer.
5.3 In the case of orders comprising several units or programs, the contractor shall be entitled to carry out partial deliveries or to issue partial invoices.
5.4 The partner accepts the constraint of possible exceeding the agreed on project time with 25%. Fasky is bound to annouce the delay as soon as there are signs for it. This ensures no additional costs are produced for both parties.
6.1 The invoices submitted by the contractor, including value added tax, are payable no later than 14 days after receipt of the invoice without any deduction and free of charges. For partial invoices, the terms of payment stipulated for the entire order shall apply analogously.
6.2 Objections to services invoiced must be raised in writing within 14 days of receipt of the invoice. If the objection is not raised in due time, the claims shall be deemed accepted.
6.3 In the case of orders which comprise several units (e.g. programs and/or training courses, implementation in partial steps), the contractor is entitled to issue an invoice after delivery of each individual unit or service.
6.4 Compliance with the agreed payment dates shall be an essential condition for the execution of the delivery or fulfilment of the contract by the contractor. Non-compliance with the agreed payments shall entitle the Contractor to discontinue current work and to withdraw from the contract. All associated costs and loss of profits shall be borne by the Customer. In the event of default in payment, interest on arrears shall be charged to the extent customary in banking. In the event of non-compliance with two instalments in the case of partial payments, the contractor shall be entitled to allow the loss of a deadline to come into effect and to demand payment of any acceptance handed over.
6.5 Is the partner behind with payments Fasky is allowed to charge reminder fees of 25€ every additional day and lawyer’s fees.
6.6 Fasky is allowed to charge up to 50% of the project price upfront.
6.5 The Customer shall not be entitled to withhold payments due to incomplete overall delivery, warranty or guarantee claims or complaints.
7. Copyright and use
7.1 All copyrights to the agreed services (programs, documentation, etc.) shall belong to the Contractor or its licensors. After payment of the agreed fee, the Customer shall exclusively be entitled to use the software exclusively for his own purposes, only for the hardware specified in the contract and to the extent of the acquired number of licenses for simultaneous use on several workstations. The present contract merely acquires a work usage permit. A distribution by the client is excluded according to copyright law. The customer’s participation in the production of the software does not acquire any rights over the use specified in this contract. Any violation of the Contractor’s copyrights shall result in claims for damages, in which case full satisfaction shall be provided.
7.2 The Customer shall be permitted to make copies for archiving and data backup purposes on the condition that the software does not contain any express prohibition by the Licensor or third parties and that all copyright and ownership notices are transferred unchanged into these copies.
7.3 Should the disclosure of the interfaces be necessary for the production of interoperability of the software in question, this shall be commissioned to the contractor by the client against reimbursement of costs. If the contractor does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively for the creation of interoperability. Misuse will result in damages.
8. Right of withdrawal
8.1 In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the contractor, the client is entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the client is not at fault for this.
8.2 Force majeure, industrial disputes, natural disasters and transport embargoes as well as other circumstances beyond the contractor’s control shall release the contractor from the delivery obligation or allow him to redetermine the agreed delivery time.
8.3 Cancellations by the customer 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 amounting to 30% of the order value not yet invoiced for the entire project in addition to the services rendered and costs incurred.
9 Warranty, Maintenance, Changes
9.1 Notices of defects shall only be valid if they concern reproducible defects and if they are documented in writing within 4 weeks of delivery of the agreed service or, in the case of individual software, within 4 weeks of acceptance of the program in accordance with Section 2.4. In the case of warranty, improvement shall in any case take precedence over price reduction or conversion. If the complaint is justified, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all necessary measures to investigate and remedy the defects. The presumption of defectiveness according to § 924 ABGB is excluded.
9.2 Corrections and additions, which prove to be necessary until the delivery of the agreed service due to organisational and programmatic defects for which the contractor is responsible, shall be carried out by the contractor free of charge.
9.3 Costs for assistance, misdiagnosis as well as error and fault rectification for which the Customer is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This shall also apply to the rectification of defects if program changes, additions or other interventions have been made by the Customer itself or by third parties.
9.4 Furthermore, the contractor assumes no warranty for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, the use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
9.5 For programs which are subsequently modified by the Customer’s own programmers or third parties, any warranty by the Contractor shall lapse.
9.6 Insofar as the object of the order is the modification or supplementation of existing programs, the warranty refers to the modification or supplementation. The warranty for the original program is not revived.
10. Liability & Compensation
10.1 Fasky shall only be liable to the contractual partner for damages – with the exception of personal injury – in the event of gross negligence (intent or gross negligence). This also applies mutatis mutandis to damages caused by third parties called in by Fasky.
10.2 Claims for damages by the contracting party may only be asserted in court within six months of becoming aware of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
10.3 The contractual partner must prove that the damage was caused by Fasky.
10.4 If Fasky performs the service with the assistance of third parties and warranty and/or liability claims arise against these third parties in this connection, Fasky shall assign these claims to the contractual partner. In this case, the contracting party shall give priority to these third parties.
The contracting parties undertake to maintain mutual loyalty. They shall refrain from any poaching and employment, also via third parties, of employees of the other contracting party who have worked on the realization of the orders during the term of the contract and 12 months after termination of the contract. The contracting party that violates this shall be obliged to pay lump-sum damages in the amount of one year’s salary of the employee.
12. Data protection, secrecy
The Contractor shall oblige its employees to comply with the provisions of §15 of the Data Protection Act.
14. Final provisions
14.1 Unless otherwise agreed, the statutory provisions applicable between fully qualified merchants shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the Contractor’s place of business shall apply exclusively. The above provisions shall only apply to sales to consumers within the meaning of the Consumer Protection Act to the extent that the Consumer Protection Act does not provide for other mandatory provisions.
14.2 The contracting parties confirm that they have given all information in the contract conscientiously and truthfully and undertake to inform each other immediately of any changes.
14.4 Amendments to the contract and these General Terms and Conditions must be made in writing, as must any waiver of this formal requirement. Verbal collateral agreements do not exist.