+43 1 890 55 03 OFFICE@BICONCEPTS.AT

Terms of Service
BIConcepts IT Consul­ting GmbH
(As of 05/2018)

1. Scope of contract and validity

All orders and agree­ments are only legally binding if they are signed by BIConcepts IT Consul­ting GmbH in writing and in accordance with the company and are only binding to the extent specified in the order confir­ma­tion. The customer’s terms and condi­tions of purchase are hereby excluded for the legal tran­sac­tion in question and the entire business relationship.

Offers are generally non-binding. The offer is part of the contract. Subsi­diary agree­ments are only legally valid if they are in writing. Cost estimates and offer documents from BIConcepts IT Consul­ting GmbH may not be made acces­sible to third parties.

2. Perfor­mance and testing

2.1. The subject of an order can be:

- Elabo­ra­tion of orga­niz­a­tional concepts
— Global and detailed analyzes
— Creation of indi­vi­dual programs
— Delivery of library (standard) programs
— Acqui­si­tion of usage autho­riz­a­tions for software products
— Acqui­si­tion of work usage permits
— Parti­ci­pa­tion in commis­sio­ning (conver­sion support)
— Telefonic consul­tancy
— program main­ten­ance
— Creation of program carriers
— Other services

2.2. Elabo­ra­tion of concepts and programs:

The elabo­ra­tion of indi­vi­dual orga­niz­a­tional concepts and programs takes place according to the type and scope of the binding infor­ma­tion, documents and resources made available in full by the client. This also includes practice-oriented test data as well as test options to a suffi­cient extent, which the client makes available in a timely manner, during normal working hours and at his own expense. If the client is already working in real operation on the system made available for testing, the respon­si­bi­lity for backing up the real data lies with the client.

2.3. Creation of indi­vi­dual programs:

The basis for the creation of indi­vi­dual programs is the written descrip­tion of services that BIConcepts IT Consul­ting GmbH elabo­rates against a cost calcu­la­tion based on the documents and infor­ma­tion made available to it or that the client makes available. This service descrip­tion must be checked by the client for correct­ness and comple­teness and provided with a note of approval. Change requests occurring later can lead to separate date and price agreements.

2.4. Software or program adaptations:

Indi­vi­du­ally created software or program adap­t­ations require a program accep­t­ance for the respec­tive program package concerned no later than four weeks from delivery by the client. This is confirmed in a protocol by the client. (Check for correct­ness and comple­teness based on the service descrip­tion accepted by the contractor using the test data provided under point 2.2.). If the client allows the period of four weeks to pass without the program accep­t­ance, the software supplied is deemed to have been accepted on the end date of the specified period.
If the software is used in real operation by the client, the software is deemed to have been accepted in any case.

2.5. Correc­tive action:

Any defects that occur, i.e. devia­tions from the service descrip­tion agreed in writing, must be reported by the client to BIConcepts IT Consul­ting GmbH in a suffi­ci­ently docu­mented manner, which will endeavor to remedy the defect as quickly as possible.
If real operation cannot be started or continued, a new accep­t­ance is required after the defect has been remedied. The client is not entitled to refuse accep­t­ance of software due to minor defects. When ordering library (standard) programs, the client confirms knowledge of the scope of services of the ordered programs with the order.

2.6. Impos­si­bi­lity of execution:

Should it turn out in the course of the work that the execution of the order according to the service descrip­tion is actually or legally impos­sible, BIConcepts IT Consul­ting GmbH is obliged to notify the client immedia­tely. If the client does not change the service descrip­tion to that effect or creates the prere­qui­site for execution to be possible, BIConcepts IT Consul­ting GmbH can refuse execution.
If the impos­si­bi­lity of execution is the result of a failure by the client or a subse­quent change to the service descrip­tion by the client, BIConcepts IT Consul­ting GmbH is entitled to withdraw from the order.
The costs and expenses incurred up to then for the acti­vi­ties of BIConcepts IT Consul­ting GmbH as well as any dismant­ling costs are to be reim­bursed by the client.

2.7. shipment

Program carriers, docu­men­ta­tion and service descrip­tions are dispatched at the expense and risk of the client.
Any addi­tional training and explana­tions requested by the client will be invoiced sepa­r­ately.
Insurance is only provided at the request of the client.

3. Prices, Taxes and Fees

3.1. All prices are in euros and do not include sales tax and fees. They only apply to the present order. The prices quoted are from the regis­tered office of BIConcepts IT Consul­ting GmbH. The costs of program carriers (e.g. CD’s, DVDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) will be invoiced separately.

3.2. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (orga­niz­a­tional advice, programming, training, conver­sion support, telephone advice, etc.), the workload will be charged at the rates appli­cable on the day the service is provided. Devia­tions from a time expen­diture on which the contract price is based, for which BIConcepts IT Consul­ting GmbH is not respon­sible, will be calcu­lated based on the actual occurrence.

3.3. The costs for travel, daily and overnight allo­wances will be invoiced to the client sepa­r­ately according to the appli­cable rates. Travel times count as working time.

4. Delivery date

4.1. BIConcepts IT Consul­ting GmbH endeavors to meet the agreed deadlines for fulfill­ment (comple­tion) as precisely as possible.

4.2. The desired fulfill­ment dates can only be met if the client has completed all necessary work and documents on the dates specified by BIConcepts IT Consul­ting GmbH, in parti­cular the service descrip­tion accepted by him in accordance with point 2.3. makes available and fulfills his obli­ga­tion to cooperate to the required extent. BIConcepts IT Consul­ting GmbH is not respon­sible for delays in delivery and cost increases caused by incorrect, incom­plete or subse­quently changed details and infor­ma­tion or documents made available and cannot lead to BIConcepts IT Consul­ting GmbH being in default. The client bears any resulting addi­tional costs.

4.3. In the case of orders that include several units or programs, BIConcepts IT Consul­ting GmbH is entitled to carry out partial deli­ve­ries or to issue partial invoices.

5. Payment

5.1. The invoices submitted by BIConcepts IT Consul­ting GmbH including sales tax are payable no later than 14 days from receipt of the invoice without any deduc­tions and free of charge. For partial invoices, the terms of payment specified for the entire order apply analogously.

5.2. In the case of orders that include several units (e.g. programs and / or training courses, imple­men­ta­tion in partial steps), BIConcepts IT Consul­ting GmbH is entitled to issue an invoice after delivery of each indi­vi­dual unit or service.

5.3. Adherence to the agreed payment dates is an essential condition for the execution of the delivery or the fulfill­ment of the contract by BIConcepts IT Consul­ting GmbH. Failure to comply with the agreed payments entitles BIConcepts IT Consul­ting GmbH to stop the ongoing work and withdraw from the contract. All asso­ciated costs as well as the loss of profit are to be borne by the client.

5.4. In the event of default in payment, BIConcepts IT Consul­ting GmbH is entitled to charge default interest of 9% pa above the three-month Euribor. If two install­ments are not adhered to in the case of partial payments, BIConcepts IT Consul­ting GmbH is entitled to allow deadlines to come into effect and to make accepted accep­t­ances due.

5.5. The client is not entitled to withhold payments due to incom­plete total delivery, guarantee or warranty claims or complaints.

6. Copyright and Usage

6.1. BIConcepts IT Consul­ting GmbH or its licensors are entitled to all copy­rights to the agreed services (programs, docu­men­ta­tion, etc.). The client only has the right to use the software after payment of the agreed fee 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.

All written and machine-readable work results created exclu­si­vely and directly for the customer such as programs, data carriers, lists and other program docu­men­ta­tion belong to the customer subject to the following provisions:

BIConcepts IT Consul­ting GmbH is not prevented from deve­lo­ping software and allowing third parties to use it, which is similar to the software supplied to the customer. Inven­tions that are made within the scope of the agreed services and relate to data proces­sing, as well as property rights granted to them, belong to the contrac­tual partner with whom they were created.

BIConcepts IT Consul­ting GmbH transfers the exclusive rights of use to the computer programs created within the scope of the agreed services to the client without any time and place restrictions.

6.2. The client is permitted to make copies for archiving and data backup purposes on the condition that the software does not contain an express prohi­bi­tion by the licensor or third parties and that all copyright and proprie­tary notices in these copies are trans­ferred unchanged.

6.3. Should the disclo­sure of the inter­faces be necessary for the produc­tion of inter­ope­ra­bi­lity of the software in question, this must be commis­sioned by the client to BIConcepts IT Consul­ting GmbH in return for a fee. If BIConcepts IT Consul­ting GmbH does not comply with this requi­re­ment and decom­pi­la­tion takes place in accordance with copyright law, the results are to be used exclu­si­vely to establish inter­ope­ra­bi­lity. Misuse results in damages.

7. Right of withdrawal

7.1. In the event that an agreed delivery time is exceeded due to sole negli­gence or illegal action on the part of BIConcepts IT Consul­ting GmbH, the client is entitled to withdraw from the order in question by means of a regis­tered letter, even if the agreed service is not provided in essential parts within the appro­priate grace period and to the client it is not at fault.

7.2. Force majeure, labor disputes, natural disasters and transport locks as well as other circum­s­tances that are beyond the control of BIConcepts IT Consul­ting GmbH release BIConcepts IT Consul­ting GmbH from the delivery obli­ga­tion or allow it to redefine the agreed delivery time.

7.3. Cancel­la­tions by the client are only possible with the written consent of BIConcepts IT Consul­ting GmbH. If BIConcepts IT Consul­ting GmbH agrees to a cancel­la­tion, it has the right to charge a cancel­la­tion fee of 30% of the not yet invoiced order value of the entire project in addition to the services provided and costs incurred.

8. Warranty, main­ten­ance, changes

8.1. The warranty period begins on the day of instal­la­tion and is 12 months. Notices of defects are only valid if they concern repro­du­cible defects and if they are made within 4 weeks of delivery of the agreed service or, in the case of indi­vi­dual software, after program accep­t­ance in accordance with point 2.4. docu­mented in writing. In the case of a guarantee, impro­ve­ment has priority over price reduction or conver­sion. If the noti­fi­ca­tion of defects is justified, the defects will be remedied within a reason­able period of time, whereby the client enables BIConcepts IT Consul­ting GmbH to take all measures necessary for the inves­ti­ga­tion and remedial action. The presump­tion of defi­ci­ency according to § 924 ABGB is excluded.

8.2. Correc­tions and additions that prove necessary up to the handover of the agreed service due to orga­niz­a­tional and program technical defi­ci­en­cies for which BIConcepts IT Consul­ting GmbH is respon­sible will be carried out free of charge by BIConcepts IT Consul­ting GmbH.

8.3. BIConcepts IT Consul­ting GmbH carries out costs for assi­s­tance, misdia­gnosis as well as error and fault elimi­na­tion for which the client is respon­sible, as well as other correc­tions, changes and additions. This also applies to the recti­fi­ca­tion of defects if program changes, additions or other inter­ven­tions have been made by the client himself or by a third party.

8.4. Further­more, BIConcepts IT Consul­ting GmbH assumes no liability for errors, malfunc­tions or damage due to improper operation, changed operating system compon­ents, inter­faces and para­me­ters, use of unsui­table orga­niz­a­tional resources and data carriers, insofar as these are prescribed, abnormal operating condi­tions (in parti­cular devia­tions from the instal­la­tion and storage condi­tions) as well as damage in transit.

8.5. For programs that are subse­quently changed by the client’s own programmers or by third parties, any guarantee by BIConcepts IT Consul­ting GmbH does not apply.

8.6. Insofar as the subject of the order is the change or addition to existing programs, the warranty relates to the change or addition. The guarantee for the original program is not revived.

9. Standard software

9.1. In return for a one-time license fee, the licensee (client) receives the unlimited right to use the standard software under the terms of use defined in the order.

9.2. All standard software products delivered by BIConcepts IT Consul­ting GmbH remain the property of BIConcepts IT Consul­ting GmbH. The client is only entitled to personal use. Unless otherwise agreed in writing, the programs may not be made acces­sible to third parties.

The licensee (client) is not entitled to make changes to the standard software without the consent of BIConcepts IT Consul­ting GmbH.
In the event that the customer passes on the product without the consent of BIConcepts IT Consul­ting GmbH, BIConcepts IT Consul­ting GmbH releases from the obli­ga­tion to provide further contrac­tually agreed services. In this case, the client under­takes to pay a contrac­tual penalty of EUR 50,000.00, which is not subject to the judicial right of moderation.

9.3. BIConcepts IT Consul­ting GmbH reserves the right to change, further develop, improve or replace the standard software programs with new deve­lo­p­ments. If we make a newer program version available to licensees with whom we have not concluded an addi­tional main­ten­ance contract, this is only done through an addi­tional fee. BIConcepts IT Consul­ting GmbH then only takes over guarantee that the changed program parts are free from defects. If new program versions are made available without addi­tional charge, any warranty is void.

10. Liability

The contractor is liable for damage, if gross negli­gence can be proven, up to the amount of the order value of the order in which the damage was caused.

BIConcepts IT Consul­ting GmbH is liable for damages, if their intent or gross negli­gence can be proven, up to the amount of the order value of the order in which the damage was caused. Liability for slight negli­gence is excluded.

Compen­sa­tion for conse­quen­tial damage and financial loss, savings not achieved, loss of interest and damage from third party claims against BIConcepts IT Consul­ting GmbH is excluded in any case, as far as legally permissible.

11. Loyalty

The contrac­tual partners commit them­selves to mutual loyalty. You will refrain from any enti­ce­ment or employ­ment, including through third parties, of employees who have worked on the imple­men­ta­tion of the orders of the other contrac­tual partner for the duration of the contract and 12 months after the end of the contract.

The contrac­tual partner who violates this is obliged to pay lump-sum compen­sa­tion in the amount of an employee’s annual salary.

12. Data protec­tion, confidentiality

BIConcepts IT Consul­ting GmbH obliges its employees to comply with the provi­sions of Section 15 of the Data Protec­tion Act.

13. Other

Should indi­vi­dual provi­sions of this contract be or become inef­fec­tive, this shall not affect the rest of the content of this contract. The contrac­tual partners will work together in part­nership to find a regu­la­tion that comes as close as possible to the inef­fec­tive provisions.

14. Final provisions

Unless otherwise agreed, the statutory provi­sions that apply between regis­tered traders apply exclu­si­vely under Austrian law, even if the order is carried out abroad. For any disputes, only the local juris­dic­tion of the relevant court for the business location of BIConcepts IT Consul­ting GmbH is agreed. For sales to consumers within the meaning of the Consumer Protec­tion Act, the above provi­sions only apply insofar as the Consumer Protec­tion Act does not necessa­rily provide for other provisions.