Terms and Condition
craftworks GmbH Version 01/2016
1.1 The following General Terms and Conditions (hereinafter referred to as "GTC") apply to the sale and delivery of hardware and software as well as services and consultancy services provided by craftworks GmbH (hereinafter referred to as "craftworks") to a customer (hereinafter "contractual partner" or “contracting party”) referred to "orders" or the "contracts").
1.2 The subject of an order or contract may be in particular: Sale and delivery of hardware and accessories Creation and delivery of custom software Delivery of standard software or standard software components Maintenance of hardware and software Acquisition of usage rights for software Rent of software Services in the commissioning of hardware and software consulting services
1.3 These terms and conditions apply regardless of whether or not they are referenced in the order or contract. They also apply to future contracts between craftworks and the contracting party, even if they are not expressly agreed to.
1.4 These terms and conditions always apply in their current version at the time of the respective contract conclusion. Upon request, terms and conditions of craftworks will be sent to the contractual partner.
1.5 Deviating or supplementary terms and conditions of the contracting party are not part of the contract, even if they are known by craftworks unless their validity is expressly agreed by craftworks in writing. By ordering from craftworks or accepting an offer from craftworks or other contracting with craftworks, the contracting party waives the application of its own terms and conditions, in particular, their defensive clauses.
1.6 If the contract concluded with the contractual partner deviates from these GTC, the provisions of the contract shall prevail.
1.7 craftworks is entitled at any time to amend or supplement these terms and conditions. The change enters into force with the agreement of the contracting party and then applies to all transactions concluded from that date.
1.8 craftworks points out to the contracting party that employees of craftworks are not authorized to make verbal additional agreements or to give verbal assurances, which go beyond the content of the respective contract or these terms and conditions.
2. CONCLUSION OF CONTRACT
2.1 Quotations and cost estimates by craftworks are always non-binding until the conclusion of the contract with the contracting party.
2.2 By placing an order with craftworks, the contracting party bindingly declares its contract offer.
2.3 A contract between the contracting party and craftworks comes about when craftworks has sent a written confirmation or delivery to the address last given by the contracting party after the receipt of an order or offer of the contracting party or has begun with the actual provision of services.
3. CONTRACTUAL OBJECT / SCOPE OF SERVICES
3.1 In General
3.1.1 Subject matter of the contract is the respective purchase, rental, leasing, lending or other legal transaction and/or the provision of the respective service by craftworks.
3.1.2 The nature and extent of the services to be provided by craftworks are governed by the provisions of the individual contract.
3.1.3 The selection of the employee who provides a service is made by craftworks. craftworks is entitled to replace deployed employees at any time by other employees with appropriate qualifications. craftworks is further entitled to have the services provided by qualified third parties.
3.1.4 craftworks reserves the right to change the services contractually agreed with the contracting party or to make improvements, insofar as such a change or improvement is commercially reasonable, necessary under statutory provisions or reasonable for the contracting party taking into account the interests of craftworks.
3.1.5 If craftworks provides free services and services, these can be discontinued by craftworks at any time without prior notice.
3.1.6 If craftworks acquires copyrights in the work results as part of the provision of services, craftworks grants the contracting party a simple, non-transferable and non-exclusive license to use the work results after full payment in its operation. All other rights to the work results remain with craftworks.
3.2 Special provisions for third-party software (standard software)
3.2.2 Standard software or standard software components are delivered on the conditions specified in the individual case. In case of doubt, the contracting party will only be granted a perpetual, non-exclusive, non-transferable license for use. Rights of use of standard software, which are granted for use against payment of a regular fee, shall be returned to craftworks with the cancellation of the corresponding agreement, but at the latest in cases of default with the payment of fees despite a written period of grace.
3.2.3 With regard to third-party software purchased from craftworks and further licensed to the contractual partner, the contractual parties agree to exclude any warranty and liability, in particular for software errors. However, craftworks has to assign claims from the contracting party against its supplier. 3.2.4 If the contractual partner refers to software which is qualified as "public domain", "freeware" or as "shareware" and which was not created by craftworks, no guarantee and liability will be given by craftworks. The contracting party must observe the license terms and conditions specified for such software by the respective copyright holder.
3.2.5 By providing software for processing, modification or further development by craftworks, the contracting party confirms that it is entitled to carry out the processing, modification or further development.
3.2.6 The contracting party shall indemnify and hold craftworks harmless from claims for breach of the above obligations.
3.3 Special provisions for software created by craftworks (individual software)
3.3.1 In the case of software created individually by craftworks, the scope of performance in the contract is determined by a specification of services. The delivery includes the program code executable on the designated systems and a program description. The rights to the programs and the documentation remain entirely with craftworks. In case of doubt, the contracting party will only be granted a perpetual, non-exclusive, non-transferable license for use. Rights of use of the software, which are granted against payment of a regular fee for use, fall with a cancellation of the corresponding agreement, but at the latest in cases of default with the payment in spite of a written grace period back to craftworks.
3.3.2 The contracting party acknowledges that minor defects in the software cannot be completely excluded from the nature of the subject matter of the contract. Unless expressly stated in the contract, craftworks assumes no liability and is not liable that (i) the software supplied complies with all requirements of the contracting party; or (ii) the software supplied cooperates with other programs of the contracting party; or (iii) the programs run uninterrupted and without errors; or (iv) all software bugs can be resolved.
3.3.3 Excluded from warranty and liability of craftworks are in particular defects caused by improper installation by the contracting party or third parties, by impermissible operating conditions and atmospheric or static discharge, by natural wear, by improper operation, by changed operating system components, interfaces and parameters, by use of unsuitable organizational means and data carriers, due to inadmissible processing of the software by the contracting party or third parties as well as by the transport of the goods.
3.3.4 The warranty is limited to reproducible (continuously repeatable) deficiencies in the program function.
3.3.5 If hardware and software are delivered by craftworks at the same time, any defects of the software shall not entitle the contracting party to withdraw also with regard to the contract on which the use or delivery of the hardware is based.
3.4 Special obligations of the contracting party
3.4.1 The contracting party is obliged to provide craftworks with all information necessary for the performance of the contractual services and to share this information. craftworks is not obliged to check this information for its logical content (accuracy, completeness, etc.). If additional works by craftworks, which are based on faulty or incomplete information, or for other reasons arise that the contracting party is responsible for, they will be invoiced separately by craftworks at the applicable hourly rates.
3.4.2 The contracting party is obliged to provide craftworks with all necessary systems for the provision of the contractual services, such as interfaces, servers, and databases at the required time, and to guarantee the availability of these systems for the entire period in which they are required. If there are additional works by craftworks that are based on faulty or unavailable systems, they will be invoiced separately by craftworks at the current hourly rates.
3.4.3 The contracting party is obliged to carry out interim acceptances in the project, such as the acceptance of drafts, designs, and intermediate results, at times defined by craftworks. 3.4.4 In case the service is delivered in the premises of the contracting party, the contracting party is obliged to provide craftworks with all for the provision and services necessary spatial and technical infrastructure at its request.
3.4.5 If a performance of craftworks for reasons for which the contracting party is responsible cannot be provided or not be provided in time, in particular, because the contracting party has failed to fulfill its obligations to cooperate, has not reported defects or malfunctions in time or the contracting party has not adhered to agreed deadlines, then the contracting party has to compensate for the additional work caused by this. In such a case, the periods agreed for the provision of services will be extended according to the delay for which the contracting party is responsible.
4.1 The completion date of the services to be provided by craftworks or the delivery date for the delivery of hardware and software is governed by the provisions of the contract concluded in individual cases.
4.2 All circumstances not influenced by craftworks, such as operational disruptions or restrictions on the delivery of production material by craftworks or a subcontractor are considered as force majeure. The occurrence of such circumstances extends the time limits agreed upon for the provision of services accordingly and does not entitle the contracting party to rescind or assert any other claims whatsoever against craftworks.
4.3 Official authorization and other approvals by third parties required for the delivery or performance of services are to be obtained from the contractual partner. If such approvals are not available on time, the periods agreed upon for the provision of services will be extended accordingly. In this case, the contractual partner is neither entitled to withdraw from the contract nor to assert any other claims of any kind against craftworks.
4.4 If the delivery or performance of the service is impossible due to the circumstances stated in clause 4.2 and/or clause 4.3, then craftworks has the right to withdraw from the contract without the contracting party being entitled to any claims whatsoever. This also applies in the event that the circumstances mentioned occuring during an already existing default.
4.5 Changes requested by the contracting party after the order has been placed shall extend the periods agreed upon for the provision of the services accordingly and shall be invoiced separately by craftworks at the applicable hourly rates.
4.6 For orders involving multiple units, craftworks is entitled to make partial or pre-delivery deliveries and to bill for each unit or service after delivery.
4.7 The contracting party undertakes to carry out the performance acceptance promptly after delivery and to conclude it within a two-week period. If discrepancies between the agreed service and the project result are found during the acceptance process, these must be prepared in a tabular form by the contractual partner. The setting of the deadline for the correction of defects, which are determined in the course of acceptance, is determined by craftworks. Delays in the acceptance caused by the contracting party entitle craftworks to charge the outstanding amount immediately.
4.8 craftworks provides all services from the place of business or office. The dispatch takes place always only over order as well as on account and on the danger of the contracting party. craftworks will take out transport insurance for the goods at the request of the contracting party at the expense of the contracting party.
5. PRICES / PAYMENT TERMS
5.1 The prices to be paid by the contracting party are regulated in the respective contract. Unless otherwise provided in the contract, the prices are quoted from the place of business or office as well as excluding VAT and other duties, packaging and shipping costs and installation costs.
5.2 In addition to the prices stated in the contract, the contractual partner shall reimburse craftworks for any and all expenses incurred in the execution of the contract (eg mileage allowances, tickets, overnight stay costs) at the applicable rates. Travel times are considered working hours.
5.3 Regularly payable fees increase in the amount of the change between the index number of the Consumer Price Index 2016 (CPI 2016) published for January of the previous year and the index number of the CPI 2016 published for January of the previous year, in each case with effect from the first of a respective calendar year, The starting point is the index number announced for January 2016. craftworks may refrain from increasing the fees due to the index change in a calendar year, but this does not affect the permissibility of future adjustments.
5.4 If the contracting party requests services outside of normal business hours, surcharges of 100% will be charged for these services on the basis of the hourly rates agreed in the contract.
5.5 Unless otherwise agreed in the contract, invoices submitted by craftworks shall be paid within 14 days of the invoice date without any deduction. Payment is deemed to have been made on the day craftworks is able to dispose of it. For partial invoices, the terms of payment specified for the entire order obtain analogously.
5.6 The offsetting of claims of the contracting party against craftworks, the withholding of payments due to alleged but not acknowledged by craftworks claims of the contracting party and any retention of contractual services of the contracting party is excluded.
6. LATE PAYMENT
6.1 In the event of late payment, without prejudice to its other rights, craftworks shall be entitled to (i) postpone fulfillment of its own obligations until such payment or other performance has been obtained, and (ii) to claim a reasonable extension of the delivery period, and (iii) to make due all outstanding claims from this or other transactions with the other legal party, and (iv) to charge default interest of 12% p.a. from the due date onwards for the outstanding amounts as long as craftworks does not provide evidence of any additional costs, and (v) to withdraw from the contract in the event of non-observance of a reasonable period of grace.
6.2 If the partial payment is agreed, craftworks shall be entitled, if the second installment is not paid in due time, to assert a loss of time and to charge the entire outstanding invoice amount.
6.3 In the event of default in payment, the contracting party is obliged to reimburse the dunning and collection expenses of a lawyer or collection agency incurred by craftworks as well as all other ancillary costs associated with the late payment.
7. RESERVATION OF TITLE
7.1 Delivered goods and software remain until full payment of all claims of craftworks from the business relationship with the contracting party in the unrestricted property of craftworks. The contracting party is not entitled to pledge reserved goods or pledging them as security to third parties.
7.2 In the event of default in payment, threatened suspension of payments or in the case of foreclosure against the contractual partner, craftworks shall be entitled to dismantle the reserved goods and/or otherwise take them back, without this being equivalent to a withdrawal from the contract. The contracting party is obliged to surrender.
7.3 In the case of seizure or other use of the reserved goods by third parties, the contractual partner is obliged to point out the ownership of craftworks and to inform craftworks immediately. The contracting party shall bear any costs incurred by third-party access for craftworks.
8.1 craftworks only guarantees that the delivered goods comply with the contractually agreed specifications upon delivery.
8.2 The warranty period is 12 months from the date of delivery or service provision. The burden of proof shall be borne by the contracting party.
8.3 Noticeable defects shall be notified by the contractual partner immediately upon delivery, hidden defects immediately after recognizability. The notifications must be made in writing in tabular form and with a detailed description of the defect. The burden of proof for the timeliness of the notice of defects shall be borne by the contracting party. If a complaint is not made in time, the goods are irrevocably approved.
8.4 If defects have been asserted within the deadline, then craftworks is first obliged to rectify the defect. Should this reworking fail or should craftworks consider this uneconomical, a corresponding price reduction must be made. Conversion by the contracting party is excluded.
8.5 The contracting party must always provide evidence that the defectiveness of the service provided was already present at the time of handover.
8.6 The recourse to craftworks according to §933b ABGB is excluded.
9.1 With the exception of personal injury, craftworks is liable for damages only in cases of intent or gross negligence.
9.2 The liability of craftworks for the loss or damage of data or information, loss of business interruption, lost profits, indirect damages, frustrated expenses as well as other consequential damages is excluded in all cases to the maximum extent permitted by law.
9.3 Claims for damages by the contracting party towards craftworks become statute-barred one year after delivery or service provision.
9.4 Any liability of craftworks towards the contractual partner is in any case limited by the amount of the order value.
9.5 Any recourse claims, which the contracting party or third parties direct against craftworks from the title of the product liability according to of the product liability law (“Produkthaftungsgesetz - PHG”) are excluded, unless the recourse claim proves that the mistake was caused in the sphere of craftworks or was at least seriously negligent.
10. DATA PROTECTION
10.1 craftworks is entitled to store, process and pass on personal data in compliance with the respective data protection provisions (in particular Data Protection Act 2000, §§ 92 et seq TKG 2003, DSGV2018) within the framework of performing the contract and for the purposes resulting from the contract. The contracting party can not derive any legal consequences from the disclosure of data due to legal obligations.
10.2 craftworks adopts the state-of-the-art, industry-standard data security measures required by the Data Protection Act. Beyond that, craftworks assumes no liability.
10.3 The contracting party agrees that craftworks uses traffic data concerning it for the purposes of the execution of the contract and its consulting, the further development and marketing of its own services, the needs analysis and the planning of network expansion. This consent may be revoked at any time.
10.4 Within the scope of legal provisions, craftworks will process data automatically and delete it upon termination of the contractual relationship, unless further storage is necessary to fulfill the legal obligations of craftworks. The contracting party authorizes craftworks to include his name or company in a reference list.
10.5 The contracting party acknowledges that craftworks is not obliged or not entitled to store certain content data (from third parties) for the contracting party indefinitely and to keep it ready for retrieval. If the contracting party does not retrieve such data within three working days, then craftworks cannot accept any liability for further accessibility.
11. DATA SECURITY
craftworks will undertake all technically possible and reasonable measures to protect its stored data. craftworks is not responsible if third parties nevertheless succeed in illegally gaining access to the data. To ensure the necessary protection of the data, the contracting party is obliged to keep passwords secret. The contracting party is liable for all damages resulting from the violation of this obligation. The contracting party is responsible for the backup of its data unless otherwise agreed. craftworks recommends the contracting party to use a firewall system and a virus wall system.
12. OTHER PROVISIONS
12.1 Severability clause If individual provisions of the GTC are or become ineffective, invalid and/or unenforceable, the effectiveness, validity and/or enforceability of the remaining provisions of the GTC shall not be affected. The ineffective provision shall be replaced by an effective, valid or enforceable one which comes as close as possible to the intended economic purpose of the provision. This also applies to the supplementary contract interpretation in the case of gaps in the contract.
12.2 Confidentiality The contracting party must treat a contract confidentially. craftworks receives the right to cite the contractual party with the company name, logo and website as a customer on the craftworks homepage and other promotional materials. Any reference to business relations with craftworks on the part of the contracting party is only permitted after written consent by craftworks. The contractual partner authorizes craftworks to use its name the description of the goods and services provided for the purposes of cooperation for press releases and publications for advertising purposes. The contracting party is obliged to keep all non-public commercial or technical details, which become known to him through the business relationship with craftworks, as the business secret of craftworks in strictest confidence. Employees and other vicarious agents are to be obliged by the contracting party to the respective confidentiality.
12.3 Non-solicitation clause The contracting party undertakes not to directly or indirectly employ or solicit, during the term of the contract and for 12 months thereafter the employees employed by craftworks or any third party commissioned by craftworks for the provision of services. For each case of the offense against this point, the contracting party submits to craftworks a contractual penalty in the amount of a yearly gross income of the employee. The assertion of damage exceeding this contractual penalty remains unaffected.
12.4 Succession craftworks is entitled to transfer rights and obligations arising from a contractual relationship with the contracting party to companies in which craftworks holds at least 50%. The contracting party shall not be entitled to the right of termination because of that.
12.5 Written form Declarations, announcements, notifications, etc. directed to craftworks require the written form and the original signature to be legally valid. Agreements to depart from this formal requirement must be made in writing. Verbal side agreements are ineffective.
12.6 Place of Performance / Jurisdiction / Applicable Law Place of fulfillment is Vienna. All disputes arising from a contract between craftworks and the contracting party, including those concerning its existence or non-existence of the contract, the competent court in Vienna has exclusive jurisdiction. The contract is subject to Austrian law under exclusion of referral norms and the UN sales convention.
12.7 Changes of address The contracting party must announce changes to its business address without any delay. Documents shall be deemed to have been received by the other party if they have been sent to their last known address.