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General Terms and Conditions of BMD Systemhaus GesmbH


BMD Systemhaus GesmbH
Sierninger Straße 190
4400 Steyr
AUSTRIA
+43 (0)50 883 or 0043 883
bmd@bmd.at
 

1. SCOPE AND VALIDITY OF CONTRACT

All orders and agreements are only then legally binding, when they have been duly signed by the contractor and they engage only to the extent set forth in the confirmation of the order. The purchase terms and conditions of the customer are hereby excluded from the legal transaction and the entire business relationship. All offers are subject to change without notic

2. PERFORMANCE AND ASSESSMENT

2.1. Object of the order 

The object of the order can be: development of organisational plans, macro- and micro-analyses, creation of custom-designed programmes, delivery of standard software, acquisition of rights to use software products, acquisition of exclusive rights to use and to exploit the software products, implementation support (support during system conversion), telephone hotline, programme maintenance, creation of programme media, other services.

2.2. Individual organisational plans and programmes

Individual organisational plans and programmes shall be developed in line with the information, documents and auxiliary material, which have been made available by the customer. Included are customised test data as well as the opportunity to test to the necessary extent, which the customer shall make available on a timely basis, during normal business hours, and at his expense. If the customer has already been working in real time on an operating system that was made available for testing, the responsibility for data backup lies with the customer.

2.3. Creating custom-designed programmes

The basis for creating custom-designed programmes shall be the written service specifications that are either provided by the contractor or customer, at a charge, on the basis of documentation and information provided to him by the contractor. This performance catalogue is to be inspected by the customer for correctness and completeness and is to be initiated by him as a sign of his assent. Requests for modifications which are made thereafter can result in separate deadlines and price changes.

For individually created software or programme adaptations, it is required that each programme be accepted by the buyer at the latest four weeks after delivery. This acceptance will be confirmed in a record of the transaction by the customer (inspection for correctness and completeness in line with the performance specifications accepted by the customer on the basis of the test data made available to him, as described in pt.2.2). Should the customer allow four weeks to pass without accepting the programme, the delivered software shall be deemed to have been accepted as of the last day of the stated time period. If the customer uses the software in real-time operations, the software is thereby deemed to have been accepted by him. Possible defects – deviations from the written service specifications – are to be reported to the contractor with sufficient supporting evidence. The contractor shall make efforts to correct the defects as quickly as possible. If there are material defects that have been confirmed in writing, i.e., if real-time operations have not commenced or cannot be continued, a renewed acceptance of the work following correction of the deficiency is required. The customer does not have the right to refuse software because of immaterial defects.

2.4.Standard software

When standard software is ordered, the customer confirms, by virtue of the order, his knowledge of the scope of performance of the programme ordered.

2.5. Deviation from the performance description

Should it transpire in the course of work to be impossible, de facto or de jure, to complete the order in line with the service specifications, it is the responsibility of the contractor to immediately inform the customer about the conditions to make completion of the order possible, the contractor can reject performance of the order. If the impossibility of carrying out the order is due to an omission on the part of the customer or to a later change by the customer in the performance specifications, the contractor shall be entitled to withdraw from the contract. The customer shall thereupon reimburse the contractor’s costs and fees that have arisen for the work as well as any dismantling costs

3. PRICES, TAXES AND CHARGES

All prices (insofar no other currency is specified) are in Euro excluding VAT. They are valid only for the existing contract. The quoted prices are ex seat of business or branch office of the contractor. The costs of programme carriers (e.g. DVD) as well as any contract fees shall be billed separately.

For library (standard) programmes the valid prices are the list prices in effect on the day of delivery. All other services (organisational consultancy, programming, training, support during conversion, telephone hotline etc.) will be charged at the effective rates on the day the services are rendered. Deviations from the amount of time calculated as being required for the work for which the contractor is not responsible, shall be billed according to the actual time spent.

Travel costs, per diems and overnight accommodation costs shall be invoiced separately to the customer according to the respective valid rates. Transit time is to be considered as work time.

All taxes are calculated according to current legal rates. In addition, if tax authorities subsequently impose taxes or duties, these shall be borne by the customer.  

4. DELIVERY DATE

4.1. Completion date

The contractor shall strive to keep the agreed dates as closely as possible for the fulfilment (completion) of the contract. The targeted completion dates can only then be met if the customer avails to the contractor in full, on the dates established by the contractor, all preliminary work and documents required and if the customer fulfils his obligation to cooperate to the extent required.

4.2. Delays in delivery and partial deliveries 

Delays in delivery and cost increases that result from incorrect, incomplete, or subsequently altered data and information or supporting documentation provided to the contractor, are not the responsibility of the contractor and cannot result in him being in default of delivery. Additional costs thus arising are to be borne by the customer. Should orders encompass several units or programmes, the contractor is entitled to make partial deliveries and to render partial invoices.

5. PAYMENT

5.1. Billing

The invoices rendered by the contractor, inclusive of sales tax, are payable according to the terms specified. For partial invoices, the terms for the total contract payment apply analogously.
For orders that encompass several units (e.g. computer programmes and/or training sessions, completion in stages), the contractor is entitled to submit an invoice after the delivery of each unit or unit of service.

5.2. Payment dates and late payment

Payment on the agreed-upon dates is a significant prerequisite for delivery and for fulfilment of the contract by the contractor. Failure to comply on the part of the customer with the agreed payment schedule entitles the contractor to halt current work and to withdraw from the contract. All costs connected therewith as well as a resulting loss of profit are to be borne by the customer. In case of delayed payment, interest on payment in arrears will be charged at 4% p.a.(§ 1000 ABGB). In the event that two consecutive instalments are not paid on time, the contractor has the right to enforce non-compliance and to recall accepted drafts. The customer is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.

6. COPYRIGHT AND USE

6.1. Copyrights, usage rights

The contractor or his licensors are entitled to all copyrights of the agreed services (programmes, documentation, etc.). The customer obtains the right to use the software only for his own purposes after payment of the agreed remuneration, only with the hardware as specified in the contract, and, in accordance with the number of licenses acquired, simultaneously at different workstations. By this contract the customer acquires merely the authorisation to use the software. Further distribution of the product by the customer is prohibited under copyright law. The customer does not by virtue of participating in the production of the software acquire any rights beyond its use as set forth in this contract. Any infringement of the copyrights of the contractor will result in the right to claim punitive damages, in which case the contractor is entitled to full compensation

6.2. Copies for archiving and backups   

The customer is permitted to make copies for archival and data backup purposes only on condition that the software does not prohibit this expressly on the part of the licensor or a third party and that all requirements of copyright and ownership are transferred onto these copies in due form.

6.3. Interoperability

Should the disclosure of the interfaces be required to maintain the interoperability (e.g. data exchange with other software products) of the software covered in this contract, the contractor shall request this from the customer (with reimbursement of costs). If the contractor does not comply with this stipulation and decompiling follows in accordance with copyright law, the results are to be used exclusively for maintaining interoperability. Abuse shall result in punitive claims for damages.

7. RIGHT OF WITHDRAWAL

7.1. Exceeding the agreed delivery time   

Should the agreed-on date of a delivery be exceeded solely due to the fault or the unlawful conduct of the contractor, the customer is entitled to cancel the contract in question by registered letter if essential components of the agreed service are not performed within a reasonable period of grace and the customer himself is in no way at fault. Force majeure, work conflicts, natural catastrophes, and transportation blockages, as well as other circumstances that cannot be influenced by the contractor relieve him of his duty to deliver or permit him to determine the delivery period agreed upon again.

7.2. Withdrawal by the customer 

Withdrawal by the customer is only possible with the written consent of the contractor. If the contractor agrees to the withdrawal, he is entitled to charge not only for services rendered and accrued costs, but also a cancellation fee that represents 30% of the value of the total order not yet billed.

8. WARRANTY AND LIABILTY

8.1. Warranty

The statutory warranty periods apply. After delivery of the agreed services or customised software by accepting the programme, the complaint must be documented in writing. In fulfilment of the warranty, rectification of defects takes precedence over price reduction or rescission of the order. If the complaint of defects is justified, the defects are to be repaired within an appropriate period of time, and the customer is avail to the contractor all measures required by the latter to investigate the problem and remedy the defects. The presumption of defectiveness in accordance with § 924 ABGB is ruled out.

8.2. Defects caused by contractor

Revisions and additions, which, before the agreed work is handed over, prove to be necessary because of organisational deficiencies or technical deficiencies in the programme, and for which the contractor bears responsibility, are to be carried out free of charge by the contractor.

8.3. Defects caused by contractor

The costs for support, diagnosis of errors, clearing defects and disruptions that are the responsibility of the customer, as well as other corrections, revisions and additions are to be carried out by the contractor at cost. This is also the case for the remedying of errors when programme revisions, additions or other interventions have been carried out by the customer himself or by a third party. Furthermore, the seller assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organisational resources and data carriers, insofar as these are stipulated, unusual operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment. For programmes that are subsequently altered by programmers of the buyer or by third parties, any existing warranty of the seller is rendered nil and void.

8.4. Modification of existing programmes

Insofar as the subject of the order is the revision or supplementation of existing programmes, the warranty covers the revision or supplementation. The warranty for the original programme does not thereby again come into effect.

8.5. Liability

The contractor shall provide the contractually agreed services with the diligence of a prudent entrepreneur - this applies to his own actions and for all the services of his employees and subcontractors, for whose actions the contractor is liable. The contractor shall be responsible for the services he provides that they are free of rights of third parties, so that the contractually assured legal positions of authority will not be affected by third party rights.
The contractor is not liable for any particular success, but solely for that that he provides his services to the best of his knowledge and belief, and at the current state of the art. Liability exists for damage caused by the contractor's services, which consist of grossly negligent causes by the contractor or his agents. Any liability for indirect or consequential damages, especially lost profits or the like, not expressly in contradiction to mandatory legal provisions, is excluded. In the event of recourse to the contractor, for any reason whatsoever, the liability of the contractor is limited in all cases to the amount of the representational order volume; in the case of a continuing obligation (namely limited or unlimited) the contractual obligation is for a period of one year.

8.6. Monitoring obligation of customer

The customer shall observe current monitoring obligations of services of the contractor; in the case of irregularities the customer shall immediately inform the contractor thereof in writing. If, in the event of a claim for damages, the customer has not complied with his duties of inspection and the written notification to the contractor, the customer shall be liable in accordance with § 1304 ABGB. 
Settings related to calculations (social security contributions, sales prices, VAT, salary formulas, etc.) are made exclusively on instruction from the customer. Liability for incorrect settings due to such requirements shall be expressly excluded. The assertion of warranty and claims for damages shall expire one year after delivery or performance of service, regardless of when any claims become known.

8.7. Data loss and data recovery

The customer shall ensure that appropriate measures are taken against data loss or enable data recovery     (e.g. by making regular backups).

8.8. Third-party software

No liability can be assumed for software not developed by the contractor.  

9. LOYALTY

The contract parties shall oblige themselves to reciprocal loyalty. They will refrain during the duration of the contract and 12 months after termination of the contract any enticement and employment, also through third parties, of employees who have worked on the realization of the orders. The contract party in violation of this clause is obliged to pay punitive lump-sum damages to the amount of one year’s salary of the employee.

10. PRIVACY AND CONFIDENTIALITY

 10.1. Personal data and processing 

The contractor stores data of the customer electronically in his database for the purpose of fulfilling the contract and continued support of the customer. Further information can be found in the customer information in the "Privacy" section of the contractor's homepage.

If no purchase contract is entered upon, the data of the customer (prospective customer) are stored for advertising purposes. The customer (interested party) may at any time have his data deleted by the contractor.

10.2. Transfer of data to third parties

A transfer of data to third parties (e.g. licensors, mail order companies, banks, legal representatives, accountants, courts, administrative authorities, participants contract and business partners, providers (IT service providers), insurances if applicable) only takes place if necessary for the fulfilment of the contract.  Right to information (Art. 15 GDPR)

According to Art. 15 GDPR, the customer has the right at any time to obtain information about all data stored about him by the contractor. The e-mail address set up by the contractor is: datenschutz@bmd.at.

10.3. Confidentiality

The contractor commits himself, his co-workers and agents, to the secrecy of the data in accordance with § 6 data protection law (DSG) and Art.28 par. 3 of the GDPR in the current version. A separate declaration of confidentiality can be requested from the contractor.

10.4. Order data processing agreement acc. to GDPR 

All information about the processing of personal data can be found in the order data processing agreement. If the contractor acts as a processor, the contract data processing agreement must be signed.

11. FINAL PROVISIONS ANS SEVERABILITY CLAUSE

Unless otherwise agreed upon, the registered merchants shall adhere to statutory provisions that apply exclusively under Austrian law, even if the order is carried out abroad. The territorial jurisdiction of the competent court for the registered office of the contractor exclusively applies as agreed for possible disputes (regional court Steyr). The foregoing article shall apply only insofar as the consumer protection law does not insist on other conditions for the sale to consumers under the Consumer Protection Act.
Should individual terms of this contract be rendered invalid or unenforceable, or become invalid or unenforceable after conclusion of contract, the validity of the remaining provisions shall remain unaffected.  The contracting parties will cooperate in partnership to find a regulation that comes as close as possible to the original provision rendered unenforceable.

© BMD Systemhaus GesmbH | Sierninger Straße 190 | A-4400 Steyr | bmd@bmd.at | +43 (0)50 883 or 0043 7252 883



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