Terms and Conditions

… for operator services in information technology (B2B)
1. General
1.1. The contractor provides the client with information technology services and the operation of hardware and software components in compliance with the attached Service Level Agreements (SLAs), which form an integral part of this agreement.
1.2. These General Terms and Conditions apply to all current and future services provided by the contractor to the client, even if no explicit reference is made to them in individual contracts. The client’s terms and conditions apply only if they have been acknowledged by the contractor in writing.

2. Scope of Services
2.1. The exact scope of the Contractor’s services is defined in the respective Service Level Agreement (SLA) with the Client. Unless otherwise agreed, the Contractor will provide the services during the Contractor’s standard business hours as specified in the SLA. The Contractor will ensure the provision and availability of the services in accordance with the respective SLA.
2.2. The basis for the facilities and technology used by the Contractor to provide the services is the Client’s qualitative and quantitative service requirements, as determined based on the information provided by the Client. If new requirements from the Client necessitate a change to the services or the technology used, the Contractor will submit a corresponding offer upon the Client’s request.
2.3. The Contractor is entitled to modify the facilities used to provide the services at its sole discretion, provided that no impairment of the services is to be expected.
2.4. Services provided by the contractor that are used by the client beyond the agreed scope of services will be compensated by the client according to actual personnel and material costs at the contractor’s currently applicable rates. This includes, in particular, services outside the contractor’s normal business hours, the analysis and rectification of malfunctions and errors caused by improper handling or operation by the client or other circumstances beyond the contractor’s control. Training services are also generally not included in the services and require a separate agreement.
2.5. If, at the client’s request, the contractor arranges services from third parties, these contracts are concluded exclusively between the client and the third party under the third party’s respective terms and conditions. The contractor is only responsible for the services it provides itself.
2.6. We expressly point out that barrier-free design as defined by the Federal Act on Equal Opportunities for People with Disabilities (Federal Disability Equality Act – BGStG) is not included in the offer unless specifically requested by the client. If barrier-free design
has not been agreed upon, it is the client’s responsibility to verify the service’s compliance with the Federal Disability Equality Act.

3. Client’s Obligations to Cooperate and Provide Resources
3.1. The client undertakes to support all measures necessary for the contractor to provide the services. The client further undertakes to take all measures necessary for the fulfillment of the contract that are not included in the contractor’s scope of services.
3.2. If the services are to be performed on the client’s premises, the client shall provide, free of charge, the network components, connections, power supply including peak voltage compensation, emergency power supplies, space for equipment, workstations, and infrastructure
(e.g., air conditioning) required for the contractor to perform the services, in the necessary scope and quality. In any case, the client is responsible for compliance with the operating requirements stipulated by the respective manufacturer for the hardware. The client is also responsible for room and building security, including protection against water, fire, and unauthorized access. The client is
responsible for any special security precautions (e.g., security cells) within its premises. The client is not authorized to issue instructions of any kind to the contractor’s employees and will communicate all requests regarding the performance of services exclusively to the contact person designated by the contractor.
3.3. The client will provide all information, data, and documents required by the contractor for the execution of the contract, at the agreed-upon deadlines and at its own expense, in the format required by the contractor. Upon request, the client will support the contractor in problem analysis and troubleshooting, the coordination of processing orders, and the alignment of services. Changes in the client’s workflows that may result in changes to the services to be provided by the contractor to the client require prior consultation with the contractor regarding their technical and commercial implications.
3.4. Unless expressly included in the scope of services provided by the contractor, the client will provide network connectivity at its own risk and expense.
3.5. The client is obligated to treat the passwords and logins required to use the contractor’s services as confidential.
3.6. The client will additionally keep the data and information handed over to the contractor on their own behalf, so that it can be reconstructed at any time in case of loss or damage.
3.7. The client shall fulfill all its obligations to cooperate in a timely manner so as not to hinder the contractor in the performance of the services. The client shall ensure that the contractor and/or any third parties commissioned by the contractor have the necessary access to the client’s premises for the performance of the services. The client is responsible for ensuring that the
employees of its affiliated companies or third parties commissioned by it involved in the performance of the contract cooperate appropriately in the performance of the contract.
3.8. If the client fails to fulfill its obligations to cooperate by the agreed deadlines or to the agreed extent, the services provided by the contractor shall nevertheless be deemed to have been performed in accordance with the contract, despite any possible limitations. Schedules for the services to be provided by the contractor shall be adjusted accordingly. The client shall separately reimburse the contractor for any additional expenses and/or costs incurred as a result, at the contractor’s applicable rates.
3.9. The client shall ensure that its employees and any third parties attributable to it handle the facilities and technologies used by the contractor, as well as any assets entrusted to it, with due care. The client is liable to the contractor for any damages.
3.10. Unless otherwise agreed, any contributions and cooperation provided by the client are free of charge. 

4. Personnel
4.1. If, according to the agreements between the contracting parties, the contractor is to take over employees of the client, a separate written agreement must be concluded.

5. Change Requests
5.1. Both contracting parties may request changes to the scope of services at any time (“Change Request”). However, a requested change must include a precise description of the change, the reasons for it, its impact on the schedule, and the associated costs, in order to allow the recipient of the Change Request to make a proper assessment. A Change Request only becomes binding upon legally valid signatures from both contracting parties.

6. Service Disruptions
6.1. The Contractor undertakes to provide the services in accordance with the contract. If the Contractor fails to provide the services at the scheduled times or provides them only defectively, i.e., with significant deviations from the agreed quality standards, the Contractor is obligated to begin remedying the defects immediately and to provide the services properly and without defects within a reasonable period by, at its discretion, repeating the affected services or carrying out necessary remedial work.
6.2. If the defectiveness is due to materials or cooperation provided by the Client or to a breach of the Client’s obligations pursuant to Section 3.9, any obligation to remedy the defects free of charge is excluded. In these cases, the services provided by the Contractor are nevertheless deemed to have been rendered in accordance with the contract, despite any possible limitations. At the Client’s request, the Contractor will undertake to remedy the defect for a fee.
6.3. The Client will support the Contractor in remedying the defects and provide all necessary information. The Client must report any defects that occur to the Contractor immediately in writing or by email. The client shall bear any additional costs incurred in troubleshooting due to a delayed notification of defects.
6.4. The provisions of this clause shall apply mutatis mutandis to any deliveries of hardware or software products from the contractor to the client. The warranty period for such deliveries is 6 months from the date of delivery. Section 924 of the Austrian Civil Code (ABGB) regarding the “presumption of defectiveness” is hereby expressly excluded. For any third-party hardware or software products provided to the client by the contractor, the
respective warranty conditions of the manufacturer of these products shall take precedence over the provisions of this clause. The contractor retains title to all hardware and software products delivered by him until full payment has been received.

7. Contractual Penalties
7.1. The Contractor is obligated to adhere to the performance levels and recovery times specified in the SLA according to priority. Should the Contractor exceed the time limits specified in the SLA for recovery, the Contractor shall pay the Client penalties for each commenced hour of overrun until actual recovery (fulfillment) is completed, as stipulated in the SLA. The aforementioned penalties are limited to 20% of the total annual fee per year. Any further claims for damages are excluded, except in cases of intent or gross negligence. Any penalty-triggering overruns must be reported to the Contractor immediately in writing.

8. Liability
8.1. The Contractor shall be liable to the Client for damages demonstrably caused by the Contractor only in cases of gross negligence. This also applies analogously to damages caused by third parties engaged by the Contractor. In the case of personal injury caused by the Contractor’s negligence, the Contractor shall be liable without limitation.
8.2. Liability for indirect damages – such as lost profits, costs associated with business interruption, data loss, or third-party claims – is expressly excluded.
8.3. Claims for damages shall become time-barred in accordance with statutory provisions, but in any event no later than one year after the claimant becomes aware of the damage and the liable party.
8.4. If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client.
8.5. If data backup is expressly agreed upon as a service, liability for data loss is not excluded, contrary to point 8.2, but is limited to a maximum of EUR 10% of the contract sum per incident, up to a maximum of EUR 15,000. Any further
warranty and damage claims by the client beyond those specified in this contract – regardless of the legal basis – are excluded.

9. Remuneration
9.1. The remuneration and terms payable by the client are set forth in the contract. Statutory value-added tax will be charged additionally.
9.2. Travel time of the contractor’s employees is considered working time. Travel time will be compensated at the agreed hourly rate. The aforementioned rates are subject to change in accordance with the price adjustment clause in section 9.5. In addition, travel expenses and any overnight accommodation costs will be reimbursed by the client based on actual expenses. Reimbursement of travel and incidental expenses will be made upon presentation of receipts (copies).
9.3. The contractor is entitled at any time to make the provision of services contingent upon the client making advance payments or providing other security in a reasonable amount.
9.4. Unless otherwise agreed in the contract, one-time fees will be invoiced after the services have been rendered, and recurring fees will be invoiced quarterly in advance. Invoices issued by the contractor, including value-added tax, are payable within 14 days of receipt without any deductions or charges. The payment terms stipulated for the overall contract apply analogously to partial invoices. A payment is deemed made on the day the contractor has access to the funds. If the client defaults on payment, the contractor is entitled to charge statutory default interest and all costs necessary for collection. Should the client’s default exceed 14 days, the contractor is entitled to suspend all services. Furthermore, the contractor is entitled to demand immediate payment for all services already rendered, irrespective of any applicable payment deadlines.
9.5. Ongoing remuneration is based on the collective bargaining agreement salary of an employee of companies in the field of services in automatic data processing and information technology at the experience level for specialized activities (ST1/ST2).
9.6. The client is only permitted to offset payments with a counterclaim acknowledged by the contractor or established by a legally binding judgment. The client is not entitled to a right of retention.
9.7. The client shall bear all tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes. Should the contractor be held liable for such charges, the client shall indemnify and hold the contractor harmless.

10. Force Majeure
10.1. To the extent and for as long as obligations cannot be fulfilled on time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strikes, lockouts, embargoes, governmental interventions, power outages, failure of means of transport, failure of telecommunications networks or data lines, changes in the law affecting the services after
conclusion of the contract or other unavailability of products, this does not constitute a breach of contract.

11. Rights of Use to Software Products and Documentation
11.1. If the Contractor provides the Client with software products or enables the Client to use software products within the scope of the services, the Client has the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in their original form.
11.2. When using software products in a network, a license is required for each concurrent user. When using software products on stand-alone PCs, a license is required for each PC.
11.3. For third-party software products provided to the Client by the Contractor, the respective license terms of the manufacturer of these software products take precedence over the provisions of this clause.
11.4. Unless otherwise agreed, no further rights to software products are transferred to the Client. The Client’s rights under Sections 40(d) and 40(e) of the German Copyright Act (UrhG) remain unaffected.
11.5. All documents provided to the client by the contractor, in particular the documentation for software products, may neither be reproduced nor distributed in any way, whether for a fee or free of charge.

12. Term of the Contract
12.1. The contract enters into force upon signature by both contracting parties and continues for an indefinite period. The contract may be terminated by either contracting party by registered letter with a notice period of six months, but not before the end of the minimum term agreed in the contract.
12.2. Each contracting party is entitled to terminate the contract prematurely and without notice for good cause by registered letter. Good cause exists in particular if the other contracting party, despite written warning and threat of termination, breaches material obligations under the contract, or if bankruptcy or other insolvency proceedings are applied for, opened, or dismissed for lack of assets against the other contracting party, or if the other contracting party’s performance is hindered or prevented for a period exceeding six months due to force majeure.
12.3. The contractor is also entitled to terminate the contract prematurely for good cause if significant parameters of the service provision have changed and, for this reason, the contractor can no longer be reasonably expected to continue providing the services from an economic perspective.
12.4. Upon termination of the contract, the client must immediately return all documents and documentation provided to the client by the contractor.
12.5. Upon request, the contractor will assist the client at the end of the contract, at the contractor’s applicable hourly rates, in transferring the services back to the client or a third party designated by the client.

13. Data Protection/Confidentiality
13.1. The contractor shall comply with the provisions of the Data Protection Act, the GDPR, and the Telecommunications Act when handling personal data and shall implement the necessary technical and organizational measures for data protection within the contractor’s area of ​​responsibility. In particular, the contractor undertakes to ensure that its employees comply with the provisions of Section 6 of the Data Protection Act.
13.2. The data protection declaration pursuant to Articles 13 and 14 of the GDPR and the data processing agreement pursuant to Article 28(3) of the GDPR are attached to this contract.

14. Confidentiality
14.1. Each contracting party assures the other that it will treat all trade secrets disclosed to it by the other party in connection with this contract and its performance as such and will not make them accessible to third parties, unless they are generally known, or were already known to the recipient without any obligation of confidentiality, or were disclosed or provided to the recipient by a third party without any obligation of confidentiality, or were demonstrably developed independently by the recipient, or must be disclosed due to a legally binding official or judicial decision.
14.2. Subcontractors affiliated with the contractor are not considered third parties insofar as they are subject to a confidentiality obligation that is substantively equivalent to this clause.

15. Miscellaneous
15.1. The contracting parties shall designate knowledgeable and competent employees in the contract who are authorized to make or initiate the necessary decisions.
15.2. During the term of this contract and for one year after its termination, the client shall not solicit, either directly or through third parties, any employees assigned by the contractor to provide the services. The client undertakes to pay the contractor a contractual penalty for each instance of violation in the amount of twelve times the gross monthly salary last received by the employee in question from the contractor, but at least the collective bargaining agreement salary of an employee in a company providing services in the field of automatic data processing and information technology at experience level ST2 for specialized activities.
15.3. Amendments and supplements to this contract must be in writing. This also applies to any waiver of this written form requirement.
15.4. Should one or more provisions of this contract be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. The ineffective or unenforceable provision shall be replaced by a valid provision that most closely approximates the economic purpose of the ineffective or unenforceable clause.
15.5. Any assignment of rights or obligations arising from this contract requires the prior written consent of the other contracting party. However, the contractor is entitled to assign the contract to a company affiliated with the contractor under corporate law, even without the client’s consent.
15.6. Unless otherwise agreed, the statutory provisions applicable between businesses under Austrian law shall apply exclusively, even if the work is performed abroad. For any disputes, the exclusive jurisdiction of the competent court at the contractor’s place of business is agreed upon. The place of jurisdiction must be explicitly agreed upon again in the contractual agreement with the client.

Mediation Clause:
In the event of disputes arising from this contract that cannot be resolved amicably, the contracting parties agree to jointly appoint registered mediators (pursuant to the Austrian Civil Mediation Act) specializing in commercial mediation from the list maintained by the Austrian Federal Ministry of Justice for the purpose of out-of-court dispute resolution. Should no agreement be reached regarding the selection of the commercial mediators or the substance of the mediation, legal action may be initiated no earlier than one month after the failure of negotiations.
In the event of a failed or terminated mediation, Austrian law shall apply to any subsequent legal proceedings.
All necessary expenses incurred as a result of prior mediation, including in particular those for any legal counsel retained, may, by agreement, be claimed as “pre-litigation costs” in any subsequent court or arbitration proceedings.