1.1 These general terms and conditions (hereafter referred to as “Terms”) of the company MaD Reporting GmbH whose registered office is in Vienna/Austria shall apply for all present and future contractual and supply relationships, in particular, to execution, content and performance of IT services and the supply of software licenses between MaD Reporting GmbH and its customers.
1.2 These terms shall apply exclusively. Conflicting or varying business conditions of the customer are not recognized by MaD Reporting GmbH unless MaD Reporting GmbH has confirmed acceptance of their validity in writing.
1.3 For existing business relationships, these terms shall apply from the first time they are referred to for all subsequent business between MaD Reporting GmbH and the customer, even if MaD Reporting GmbH has not explicitly referred to these terms in subsequent business deals.
2 CONTRACT CREATION, SUPPLY, PRICES, PAYMENT CONDITIONS
2.1 Offers from MaD Reporting GmbH are non-binding and without obligation until the final confirmation of the order in so far as no validity date is mentioned in the offer. The order from the customer, whether verbal or written, is a binding offer to MaD Reporting GmbH. The contract between MaD Reporting GmbH and the customer comes into existence with the written order confirmation from MaD Reporting GmbH. Special agreements, side letters or changes always require written confirmation from MaD Reporting GmbH
2.2 Technical and design-related discrepancies from the descriptions and data in brochures, catalogues and written documents, such as changes to model, structure and material in the course of the technical progress or in the case of change to the market situation shall be reserved and no rights against MaD Reporting GmbH can be derived by the customer from the above.
2.3 All dates for supplies and performance are non-binding unless explicitly firm dates are confirmed in writing. Deadlines for supply or performance shall commence from the date given in the order confirmation, but not before the complete and proper fulfilment of all duties of the customer, especially the achievement of the technical prerequisites and fulfilment of the duties under the following regulations of these terms as well as the receipt in full of all agreed payments or prepayments in our bank account.
2.4 In the case of force majeure or other unforeseeable, unusual events which are not the fault of MaD Reporting GmbH (including but not limited to production disruptions, strikes, lock-outs, breach of sovereignty, natural catastrophe et al.) the dates and deadlines for execution shall be extended for the duration of the interruption and an appropriate restart time. MaD Reporting GmbH will inform the customer about the occurrence and end of such conditions without delay. Should it become totally or partially impossible for MaD Reporting GmbH to perform its obligations because of such events then MaD Reporting GmbH shall be relieved of such obligations to the extent affected. Any pre-payments from the customer will be returned promptly. Apart from such refunds, the customer shall not be entitled to any further compensation.
2.5 The current price list of MaD Reporting GmbH shall apply in so far as no other price agreement exists in writing. All prices are exclusive of statutory VAT applicable at the time of concluding the contract. If repeated or permanent services are to be performed, the refund of VAT applicable at the time when the relevant performance is delivered shall be decisive.
2.6 One-off contractual payments (one-off user fee for software, purchase price for hardware, fees for one-time services) shall be payable 30 days after the performance of service or receipt of goods. Payments must be effected on the due date without any deductions.
2.7 In the case of services the said remuneration shall be based on an 8-hour working day. Expenses must be paid according to the level of expenses specified in the offer. Costs of extra services and services resulting from incorrect or incomplete information by the customer, non-verifiable claims for defect, or inappropriate use of the system shall be borne by the customer.
2.8 MaD Reporting GmbH is entitled to offset the payments against other receivables from the customer whose payment shall be offset against the oldest receivable, then the costs, interest and finally, the principal amount.
2.9 The customer can offset the claims of MaD Reporting GmbH only against the counter-claims which are determined as final and binding or undisputable.
2.10 After 30 days from the receipt of the invoice and its falling due for payment, the customer shall be deemed to be in default without the need for any reminder. Delayed payments shall incur 8 per cent points above the current base interest rate and shall be invoiced accordingly.
3 COOPERATION OBLIGATION OF THE CUSTOMER
3.1 The customer has to make available to MaD Reporting GmbH all information and documentation necessary to perform its obligations, complete and without errors, before work commences. This applies in particular with respect to equipment, plant, programs and parts of programs which have to work with the software to be supplied or created or have an effect on, or are effected by, the results of the consultancy or programming services of MaD Reporting GmbH. Should, in the opinion of MaD Reporting GmbH, a need for further information arises in the course of executing the order, then the customer has to provide such information upon a simple request from MaD Reporting GmbH without causing any delay of such further documents or information. If the customer does not meet this obligation punctually then the customer shall be liable to recompense MaD Reporting GmbH for the resulting extra work.
3.2 Changes to the technical requirements originally existing when the order was placed or notified by the customer in the time between the contract coming into existence and the beginning of the performance by MaD Reporting GmbH or during the execution of the order shall be for the customer’s account. The customer shall be liable to recompense MaD Reporting GmbH for the resulting extra work.
3.3 The customer is obliged within the framework of the contractual relationship with MaD Reporting GmbH, to undertake the usual protection measures for the customer’s EDP systems to prevent system damage or data loss, in particular through the use of a suitable anti-virus program and regular data back-ups. Any responsibility from MaD Reporting GmbH for loss of data is thus legally excluded.
4 SCOPE OF PERFORMANCE, USAGE RIGHTS
4.1 The description of the scope of supply or performance in the order confirmation shall determine the scope of the obligations of MaD Reporting GmbH. In as much as the scope of performance of MaD Reporting GmbH is not limited to the supply and, if necessary, adjustment of standard software, MaD Reporting GmbH and the customer shall produce an exact description of the intentions of the duty of supply owed by MaD Reporting GmbH and a specific description of the project and list of obligations including details of the working time involved, the place of operation and other special conditions which must be fulfilled when completing the order.
4.2 The cooperation and support of MaD Reporting GmbH in the creation of the above description and obligations list is payable by the customer to MaD Reporting GmbH.
4.3 Data carriers on which software or other program output is stored or defined which are supplied by MaD Reporting GmbH within the scope of fulfilling the order, as well as the associated manuals, remain the property of MaD Reporting GmbH until all payments have been made in full. In as much as data carriers become the property of the customer, MaD Reporting GmbH retains the copyright and all other use and protection rights for the software stored on the or other stored contents unless the customer has been granted certain rights explicitly.
4.4 The scope of supply of MaD Reporting GmbH involves Software, which is protected by copyright or other commercial protection rights, such as patents, for example. The same applies to other services of MaD Reporting GmbH, especially individual programming operations. MaD Reporting GmbH allocates to the customer a non-exclusive, non-transferrable right with no time limit for the exclusive own use. With the exception of the rights in the last sentence, all remaining rights for the software and for all results of the services performed for the customer and the services on which they are based as well as all other protected achievements remain with MaD Reporting GmbH.
4.5 MaD Reporting GmbH allows the use of its software on one computer/server or the number of computers/server specified in the order confirmation. If the customer exceeds the set number of computers/server even once, then the customer is obliged to pay MaD Reporting GmbH compensation damages. The rate of compensation damages is calculated as double the cost of usage rights according to the currently valid price list of MaD Reporting GmbH.
4.6 In as much as the services and supply of MaD Reporting GmbH also includes third party software or other protected supplies of third parties, the rights of such third parties shall not be affected. The customer is obliged to pay due respect to the rights of such third parties and any applicable usage restrictions. Should the customer be in breech of this obligation then damages resulting shall be for the sole account of the customer. The customer indemnifies MaD Reporting GmbH against all possible third party claims.
4.7 In the case of a breach of the protected rights of third parties, due payments being delayed or other breaches of contract, MaD Reporting GmbH can revoke the customer’s usage rights with effect at any time. The customer shall not be relieved of their obligations by this. MaD Reporting GmbH will restore the revoked rights when all obligations of the customer have been met in full. Should MaD Reporting GmbH incur costs through this, then these costs must be bourn in full by the customer and must be paid in full by the customer.
4.8 The customer is not entitled to copy, duplicate or pass on directly or indirectly to any third party software or other protected material produced or created by MaD Reporting GmbH without the permission of MaD Reporting GmbH, nor may the customer reverse engineer, decompile, disassemble, edit, modify, alter or integrate any protected products received from MaD Reporting GmbH into software or other products in part or in whole. For further information please see the applicable EULA of MaD Reporting GmbH.
4.9 MaD Reporting GmbH is not obliged to make available to the customer the source code of the software or program work supplied nor to give the results of preliminary work on which such software or programming results are based unless this is promised in the order confirmation from MaD Reporting GmbH.
4.10 If MaD Reporting GmbH develops new versions of the software supplied, the customer shall have no right to the new version (upgrades) without a special agreement.
5.1 Standard software shall be regarded as having been accepted from MaD Reporting GmbH by the customer when it is delivered to the customer or on installation at the customer’s premises. No specific function test nor any specific acceptance shall be required.
5.2 In as much as it is not standard software, the acceptance of all services shall take effect after a function test in accordance with the details in the order confirmation from MaD Reporting GmbH or a separately agreed description of the scope of supply. If the function test is completed successfully then the customer is obliged to declare acceptance.
5.3 If no specific acceptance is declared and if the customer uses the product for 14 days without complaint then the product shall be regarded as having been accepted, even if no joint function test has taken place.
5.4 If different timings have been agreed for reaching functionality of different parts of the total scope of supply, then the function test shall be restricted on each occasion to the corresponding partial supply. The acceptance of the last partial supply counts as the acceptance of the complete supply from MaD Reporting GmbH.
5.5 The customer cannot refuse acceptance on the basis that during the course of the work different requirements for the performance specification have arisen unless these variations during the course of execution of the project were agreed in writing.
6 RETENTION OF TITLE
6.1 The supplied goods which are covered by the contract shall remain the property of MaD Reporting GmbH until all goods supplied to the customer by MaD Reporting GmbH are fully paid for. This shall also apply to all copies of software that are transferred on the data storage media or online, and to the accompanying material. If rights of use to the software are granted only, the above-mentioned provision shall apply accordingly to the data storage media which are provided.
6.2 The customer is entitled to process, modify the goods which are subject to the retention of title or otherwise adjust them to its own needs in the ordinary course of business if the customer does not delay payment and it does not contradict the license conditions by MaD Reporting GmbH. Pledge or transfer by way of security is not permitted. Claims arising from resale or other legal grounds shall be assigned by the customer to MaD Reporting GmbH upon signing the contract to the extent which reflects the MaD Reporting GmbH’s share in joint ownership. MaD Reporting GmbH provides the customer with the right (revocable at any time) to collect the claims assigned to MaD Reporting GmbH on its own account and in its own name. Upon request of MaD Reporting GmbH, the customer shall disclose the assignment and provide the relevant and necessary information and documents.
6.3 In the case of third party rights to the goods which are subject to the retention of title, in particular as regards pledges, the customer must indicate the title of MaD Reporting GmbH and immediately notify the latter thereof. If the customer acts in breach of the contract, in particular, if it delays payment, MaD Reporting GmbH shall be entitled to collect the goods which are subject to the retention of title at the cost of the customer or, if applicable, demand the customer to assign the claims for restitution from third parties. The collection of goods that are subject to the title of retention by MaD Reporting GmbH shall not constitute withdrawal from the contract. Processing or conversion is always made by the customer for MaD Reporting GmbH as the producer, but without any obligation. If the title or joint title of MaD Reporting GmbH ceases to exist due to combination, mixing or processing, the title or joint title of the customer to homogenous goods shall be transferred to MaD Reporting GmbH in proportion to the value (invoice value without statutory VAT applicable at any time). In this case, the customer shall preserve the title or joint title of MaD Reporting GmbH free of charge.
7 GUARANTEE, LIABILITY
7.1 The customer is aware that the state of the art makes it impossible to create absolutely fault-free software.
7.2 MaD Reporting GmbH guarantees that the software or product produced by MaD Reporting GmbH does not infringe any third party rights. If the use of the software by the customer in accordance with the contract is nevertheless restricted or prevented because of the infringements of valid third party rights then MaD Reporting GmbH shall have the free choice either to change the supply in such a way that the third party rights are no longer infringed or to replace the software so that such rights are no longer infringed, but that in either case the agreed performance target is still met, or to arrange a license agreement with that third party at its own costs. In the event of disputes between the customer and third parties about infringements of rights or of intellectual property, MaD Reporting GmbH shall have the lead role and the right to take decisions. Should the customer reach an agreement with the third party or conduct a legal dispute with such parties without the involvement of MaD Reporting GmbH, then no liability upon MaD Reporting GmbH can arise out of the total process.
7.3 Any undertakings or guarantees for the technical details of the supplied software or other scope of supply beyond the details in any documentation or the contractual agreements are not accepted by MaD Reporting GmbH.
7.4 In the event of possible defects MaD Reporting GmbH is entitled to make two attempts at rectification within an appropriate timescale before the customer can make any further valid claims. A guarantee is excluded if the problem results from circumstances or conditions which are the customer’s responsibility, especially if the customer has failed in his obligation to provide cooperation and support.
7.5 If the newly-manufactured products, products provided for use or their parts sold by MaD Reporting GmbH have defects at the time when they are handed over or made available which cancel or significantly reduce the value or fitness of the product for the contractual use according to the description of service, the customer can only demand the improvement within the framework of liability for material and legal defects first. The products are not considered defective, even if they essentially do not comply with specifications and documentation in their version concerning the affected software.
7.6 The attempt at improvement shall be excluded if the improvement would involve a disproportionate effort. Basically, the improvement shall be made free of charge. If the customer moved the purchased products to another location as its place of residence or business address after delivery, the customer must bear additional costs resulting from the improvement, if moving the products does not comply with their use according to the contract. If the right to improvement is excluded or if the defects cannot be removed by the improvement within 3 months after the notification, the customer can assert the statutory guarantee rights, in particular, demand a reduction of the license fee.
7.7 Consultation and other services are provided by MaD Reporting GmbH to the best of their knowledge, according to the standards published for the relevant software and service and with the objective to enable the customer to perform its work with the product. A guarantee for successful services shall not be given.
7.8 A complaint about defects must be made in writing as accurately as possible and immediately after the first malfunction or error message, including the information about the operating procedure which led to the malfunction. Own attempts to remove the error usually lead to more serious damages which MaD Reporting GmbH is not liable for. In particular, MaD Reporting GmbH shall not be liable for the damages which are attributed to incorrect handling, operation or input, improper installation or use, unauthorised access to source code and use with unapproved operating system or other software in breach of the contract. The commercial obligation to inspect and report defects shall remain unaffected. If the defect which has been complained about transpires as a result of the above-mentioned circumstances, the customer must refund the expenses of MaD Reporting GmbH incurred as a result according to the relevant rates in the price list for services which is applicable at that time. However, MaD Reporting GmbH does not have any obligation to perform the relevant service. This shall apply accordingly to the cases when improvements of MaD Reporting GmbH have been impeded, obstructed or expanded more than insignificantly.
7.9 Any claims under guarantee for defects shall no longer be valid if made later than twelve months form the date of supply.
7.10 MaD Reporting GmbH shall be responsible for damages which do not apply to the scope of supply itself, regardless of the legal basis, only in the case of gross negligence or deliberate wrongdoing on the part of its organs or senior staff or for faults whose absence was guaranteed by MaD Reporting GmbH or which MaD Reporting GmbH deceitfully failed to notify. In the case of culpable default of essential contract obligations, MaD Reporting GmbH shall also be liable even for gross negligence of non-senior staff. Liability according to product liability regulations is not affected. All other liabilities on the part of MaD Reporting GmbH are excluded.
8 INDUSTRIAL PROPERTY RIGHTS
8.1 MaD Reporting GmbH shall remain the owner of all rights to the software transferred to the customer, rights to all parts thereof, or to the software which is entirely or partially derived from the software, including any associated materials. This shall apply, even if the customer changes the software to the extent permitted by the contract or combines it with their own software or such third party software. MaD Reporting GmbH is free to use and exploit, in particular, publish, copy, expand, process, change the work results, such as computer software, ideas, methods, procedures and know-how obtained within the framework of the customer’s order or through its development, or integrate them with or incorporate them in other software under its own name at its own discretion. The customer must not remove the present identifications, industrial property rights notes or proprietary notices of MaD Reporting GmbH from the software, and the customer must also include them in the created copies, if applicable. MaD Reporting GmbH indemnifies the customer against all third party claims due to the breach of industrial property rights to the software developed and transferred by MaD Reporting GmbH in the versions which are compliant with the contract. If such liability arises, it is required that the customer would not make any written or verbal statements to third parties about the breach of the industrial property rights, in particular, the customer would not recognize any rights or circumstances, and would not accept any liability. Moreover, the customer must not combine the software with third-party software without prior written consent of MaD Reporting GmbH and must not use the software otherwise than for the intended purpose.
8.2 MaD Reporting GmbH is entitled to introduce necessary software changes on the customer’s premises at its own cost based on a third-party claim for industrial property rights. The customer cannot derive any contractual rights from the above. The customer must immediately notify MaD Reporting GmbH in writing if the breach of industrial property rights and copyright in the product supplied by MaD Reporting GmbH is indicated to the customer. The customer can use the software only for its own purposes if it has not been clearly agreed otherwise. The customer can make copies of the transferred software only for backup purposes. Copies of transferred documents, such as documentation, user manuals, etc. can only be made with the prior written consent of MaD Reporting GmbH. The customer shall be liable to MaD Reporting GmbH for all damages resulting from the breach of the above-mentioned obligations of the customer.
9 DATA PROTECTION, SECRECY
9.2 Passwords notified by MaD Reporting GmbH to the customer or its employees are to be kept secret and may not be made accessible to, nor revealed to, third parties. This also applies for the time after the contractual relationship has ended.
10.1 From the time when the contract is concluded, MaD Reporting GmbH is entitled to refer to the existing contractual relationship and advertise it to the public by including the company name of the customer on the list of references.
11 NON-SOLICITATION CLAUSE
11.1 The client undertakes not to directly or indirectly entice away any personnel provided by the MaD Reporting GmbH working for the client under this agreement.
11.2 If the client violates this prohibition on the solicitation of personnel, he shall pay the client a cumulative contractual penalty of one year of total compensation of the solicited personnel. MaD Reporting GmbH shall have the right to demand the actual fulfillment of the non-solicitation clause and the payment of the contractual penalty.
12 FINAL AGREEMENTS
12.1 Offsetting or the application of any right of retention by the customer against MaD Reporting GmbH are explicitly excluded. Any transfer of rights and legal claims arising from the contract by the customer shall only be valid with the written agreement in advance from MaD Reporting GmbH.
12.2 The term of the contract shall be determined by a special contract that will be concluded on the basis of these GTCs. The statutory provisions shall apply to the early termination of this contract.
12.3 The requirement for a written form in the above conditions is also fulfilled by the electronic communication by fax or e-mail. Later supplements or amendments to the concluded agreements must be in writing. The verbal renouncement of the written form shall be excluded.
12.4 The place of jurisdiction and the place where the contract is deemed to be carried out shall both be Vienna, Austria.
12.5 The contractual relationship between MaD Reporting GmbH and the customer shall be subject to the laws of the Federal Republic of Austria. The regulations of the uniform law on the international sale of goods shall be waived.
12.6 If an individual provision or several provisions of these terms and conditions or further conditions and agreements based on them are or become ineffective, or if they contain a loophole, this shall not affect the validity of other provisions. The economically reasonable and permitted regulation which the contractual parties intended or would have intended according to the sense and purpose of the terms and conditions if they had taken the ineffectiveness or loophole into account, shall replace the ineffective provision or fill up the loophole.