GENERAL TERMS AND CONDITIONS OF BUSINESS

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1. General

1.1. The Contractor (AN) provides services for the Client (AG) in the field of information technology and the operation of hardware and software components in compliance with the enclosed Service Level Agreements (SLAs), which form an integral part.

1.2. These General Terms and Conditions (GTC) apply to all current and future services that the Contractor provides to the Client, even if in individual cases no express reference is made to the GTC when the contract is concluded. The Client's terms and conditions only apply if they have been accepted in writing by the Contractor.

2. Scope of Services

2.1. The exact scope of the Contractor's services is specified in the respective SLA with the Client. Unless otherwise agreed, the Contractor will provide the services during the Contractor's usual business hours in accordance with 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 service is the qualitative and quantitative service requirements of the Client, as determined on the basis of the information provided by the Client. If new requirements of the Client make it necessary to change the services or the technology used, the Contractor will submit a corresponding offer at the Client's request.

2.3 The Contractor is entitled to change the facilities used to provide the services at its own discretion if no impairment of the services is to be expected.

2.4. Services provided by the Contractor that are used by the Client beyond the scope of services agreed in each case will be remunerated by the Client based on actual personnel and material costs at the rates applicable at the time for the Contractor. This includes in particular services outside of the Contractor's usual business hours, the analysis and elimination of faults and errors that have arisen due to improper handling or operation by the Client or other circumstances for which the Contractor is not responsible. Likewise, training services are generally not included in the services and require a separate agreement.

2.5. If the Contractor arranges services from third parties at the Client's request, these contracts are concluded exclusively between the Client and the third party in accordance with the third party's respective terms and conditions. The Contractor is only responsible for the services it itself provides.

2.6. We expressly point out that a barrier-free design within the meaning of the Federal Law on Equal Opportunities for People with Disabilities (Federal Disability Equality Act - BGStG) is not included in the offer unless this has been separately/individually requested by the client. If barrier-free design has not been agreed, the client is responsible for checking the service for its admissibility with regard to the Federal Disability Equality Act.

3. The Client's duty to cooperate and provide assistance

3.1. The Client undertakes to support all measures that are necessary for the provision of the services by the Contractor. The Client also undertakes to take all measures that are necessary to fulfil the contract and that are not included in the scope of services of the Contractor.

3.2. If the services are provided on-site at the Client's premises, the Client shall provide the network components, connections, supply current including peak voltage compensation, emergency power supplies, storage space for systems, workstations and infrastructure in the required scope and quality (e.g. air conditioning) required for the provision of the services by the Contractor free of charge. In any case, the Client is responsible for compliance with the requirements for the operation of the hardware required by the respective manufacturer. The Client must also ensure room and building security, including protection against water, fire and access by unauthorized persons. The Client is responsible for special security precautions (e.g. security cells) in its premises. The Client is not entitled to give instructions of any kind to the Contractor's employees and will submit all requests regarding the provision of services exclusively to the contact person named by the Contractor.

3.3. The Client shall provide all information, data and documents required by the Contractor to carry out the order in the form requested by the Contractor at the agreed dates and at its own expense, and shall support the Contractor upon request in problem analysis and troubleshooting, coordinating processing orders and coordinating services. Changes in the Client's work processes that may cause changes in the services to be provided by the Contractor for the Client must be agreed in advance with the Contractor with regard to their technical and commercial effects.

3.4. Unless this is expressly included in the scope of services provided by the Contractor, the Client shall provide a network connection at its own risk and expense.

3.5. The Client is obliged to treat the passwords and log-ins required by the Contractor to use the services as confidential.

3.6. The Client shall also keep the data and information provided to the Contractor so that they can be reconstructed at any time in the event of loss or damage.

3.7. The Client will fulfill all of its obligations to cooperate in a timely manner so that the Contractor is not hindered in providing the services. The Client will ensure that the Contractor and/or the third parties commissioned by the Contractor are granted the necessary access to the Client's premises to provide the services.
The Client is responsible for ensuring that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract cooperate accordingly in the performance of the contract.

3.8. If the Client does not fulfil its obligations to cooperate on the agreed dates or to the extent provided, the services provided by the Contractor shall be deemed to have been provided in accordance with the contract despite possible restrictions.
Schedules for the services to be provided by the Contractor will be postponed to an appropriate extent. The Client will separately compensate 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 third parties attributable to it treat the facilities and technologies used by the Contractor and any assets entrusted to it with care; the Client shall be liable to the Contractor for any damage.

3.10 Unless otherwise agreed, the Client’s provision of materials and assistance shall be free of charge.

4. Personnel

4.1 If, according to the agreements made between the contracting parties, employees of the Client are taken over by the Contractor, a separate written agreement must be made to this effect.

5. Change Requests

5.1. Both contracting parties can request changes to the scope of services at any time ("Change Request"). However, a requested change must contain a precise description of the change, the reasons for the change, the impact on scheduling and the costs, in order to give the recipient of the change request the opportunity to make an appropriate assessment. A change request only becomes binding once both contracting parties have signed it legally.

6. Performance disorders

6.1. The Contractor undertakes to provide the services in accordance with the contract. If the Contractor does not provide the services at the scheduled times or only provides them inadequately, i.e. with significant deviations from the agreed quality standards, the Contractor is obliged to begin rectifying the defects immediately and to provide its services properly and without defects within a reasonable period of time by repeating the affected services or carrying out any necessary remedial work at its discretion.

6.2. If the defect is due to the provision or cooperation of the Client or to a breach of the Client's obligations under point 3.9, any obligation to remedy the defect free of charge is excluded. In these cases, the services provided by the Contractor are nevertheless deemed to have been provided in accordance with the contract despite possible restrictions. At the Client's request, the Contractor will remedy the defect for a fee.

6.3. The Client will support the Contractor in rectifying defects and provide all necessary information. Any defects that occur must be reported to the Contractor immediately in writing or by email. The Client will bear the additional costs of rectifying defects caused by a late report.

6.4. The provisions of this point 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 handover. Section 924 ABGB "Presumption of Defect" is mutually excluded. For any hardware or software products from third parties provided to the client by the contractor, the respective warranty conditions of the manufacturer of these products take precedence over the provisions of this point. The contractor retains ownership of all hardware and software products delivered by it until full payment has been made.

7. Contractual penalty

7.1. The Contractor is obliged to comply with the fulfillment levels or restoration times specified in the SLA according to priorities. If the Contractor exceeds the time limits specified in the SLA for restoration, the Contractor must pay penalties to the Client for each hour of the exceedance until actual restoration (fulfillment) according to the SLA:

The above-mentioned penalties per year are limited to 20% of the total annual fee. Any further claim for damages is excluded, unless in the case of intent or gross negligence.

Should any exceedances that result in penalties occur, the Contractor must be informed of these immediately in writing.

8. Liability

8.1. The contractor is liable to the client for damages that are demonstrably caused by him only in the event of gross negligence. This also applies mutatis mutandis to damages caused by third parties engaged by the contractor. In the event of personal injury caused by negligence, the contractor is liable without limitation.

8.2 Liability for indirect damages - such as lost profits, costs associated with business interruptions, loss of data or claims from third parties - is expressly excluded.

8.3. Claims for damages shall expire in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the person responsible.

8.4. If the Contractor performs the work with the assistance of third parties and in this context warranty and/or liability claims arise against these third parties, the Contractor assigns these claims to the Client.

8.5. If data backup is expressly agreed as a service, liability for the loss of data is not excluded, contrary to point 8.2, but is limited to a maximum of EUR 10% of the order amount for each case of damage, but a maximum of EUR 15,000. Any warranty and compensation claims by the Client that go beyond those specified in this contract - regardless of the legal basis - are excluded.

9. Remuneration

9.1. The remuneration and conditions to be paid by the Client are set out in the contract. The statutory sales tax will be charged additionally.

9.2. Travel times of the contractor's employees are considered working hours. Travel times are remunerated at the agreed hourly rate. The rates mentioned change according to the price adjustment clause in point 9.5. In addition, travel costs and any accommodation costs will be reimbursed by the client based on actual expenditure. Reimbursement of travel and incidental costs will be made upon presentation of receipts (copies).

9.3. The Contractor is entitled at any time to make the provision of services dependent on the Client making advance payments or providing other securities of an appropriate amount.

9.4. Unless otherwise contractually agreed, one-off payments will be invoiced after the service has been provided, and ongoing payments will be invoiced quarterly in advance. The invoices issued by the Contractor, including VAT, are payable no later than 14 days after receipt of the invoice without any deductions and free of charge. The payment terms specified for the entire order apply analogously to partial invoices. A payment is deemed to have been made on the day on which the Contractor can dispose of it. If the Client defaults on payments, the Contractor is entitled to charge the statutory default interest and all costs required to collect the payment. If the Client defaults for more than 14 days, the Contractor is entitled to stop all services. The Contractor is also entitled to demand immediate payment for all services already provided, regardless of any payment deadlines.

9.5. Ongoing remuneration is based on the collective agreement salary of an employee of an enterprise in the field of services in automatic data processing and information technology at the experience level for special activities (ST2).

9.6. The Client is only permitted to offset against a counterclaim that has been acknowledged by the Contractor or has been legally established. The Client is not entitled to a right of retention.

9.7. All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Client.

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 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, sovereign interventions, power failure, 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 of software products and documentation

11.1. To the extent that the Contractor provides the Client with software products or enables the Client to use software products as part of the services, the Client shall have the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in an unchanged form.

11.2. When using software products in a network, a license is required for each simultaneous 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 shall take precedence over the provisions of this point.

11.4 Unless a separate agreement is made, no further rights to software products will be transferred to the Client.

The rights of the Client under Sections 40(d) and 40(e) of the Copyright Act are not affected by this.

11.5. All documents provided to the Client by the Contractor, in particular documentation on software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.

12. Term of the contract

12.1. The contract comes into force upon signature by both contracting parties and runs for an indefinite period. The contract can be terminated by either contracting party by registered letter, subject to a notice period of 6 months, but at the earliest at 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 violates essential obligations under the contract despite written warning and threat of termination, or bankruptcy or other insolvency proceedings are applied for, opened or rejected due to insufficient assets against the other contracting party, or the services of the other contracting party are hindered or prevented for a period of more than six months as a result of force majeure.

12.3. The Contractor is also entitled to terminate the contract prematurely for good cause if essential parameters of the provision of services have changed and the Contractor can therefore no longer be expected to continue providing the services from an economic point of view.

12.4. Upon termination of the contract, the Client must immediately return to the Contractor all documents and documentation provided to him by the Contractor.

12.5. Upon request, at the end of the contract, the Contractor will assist the Client in returning the services to the Client or a third party designated by the Client at the hourly rates applicable to the Contractor.

13. Data protection / confidentiality

13.1 When handling personal data, the Contractor will comply with the provisions of the Data Protection Act, the GDPR and the Telecommunications Act and take the technical and organizational measures required for data protection within the Contractor’s area of responsibility.

The Contractor undertakes, in particular, to ensure that its employees comply with the provisions of Section 6 of the Data Protection Act.

13.2. The data protection declaration within the meaning of Articles 13 and 14 GDPR and the data processing agreement within the meaning of Article 28 paragraph 3 GDPR are enclosed with the order.

14. Confidentiality

14.1. Each contracting party assures the other party that it will treat all trade secrets brought to its attention by the other party in connection with this contract and its implementation as such and will not make them accessible to third parties unless they are generally known, or were previously known to the recipient without an obligation to maintain confidentiality, or were communicated or provided to the recipient by a third party without an obligation to maintain confidentiality, or were demonstrably developed independently by the recipient, or are to be disclosed due to a legally binding administrative or judicial decision.

14.2. Subcontractors associated with the Contractor shall not be deemed to be third parties insofar as they are subject to a confidentiality obligation corresponding to the content of this point.

15. Miscellaneous

15.1. The contracting parties shall appoint knowledgeable and competent employees in the contract who can make or initiate the necessary decisions.

15.2. During the term of the contract and up to one year after the end of the contract, the Client will not poach employees employed by the Contractor to provide the services either itself or through third parties. For each case of infringement, the Client undertakes to pay the Contractor a contractual penalty of twelve times the gross monthly salary that the employee in question last received from the Contractor, but at least the collective agreement salary of an employee of a company in the field of services in automatic data processing and information technology at the experience level for special activities (ST2).

15.3. Changes and additions to the contract must be made in writing. This also applies to the cancellation of this formal requirement.

15.4. If one or more provisions of the contract are or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid or unenforceable clause.

15.5. Any disposal of the rights or obligations arising from the contract requires the prior written consent of the other contracting party. However, the Contractor is entitled to transfer the contract to a company affiliated with the Contractor under group law without the consent of the Client.

15.6. Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the sole local jurisdiction shall be the competent court for the contractor's place of business.

The place of jurisdiction is specified in the contractual agreement with the customer

to be explicitly agreed upon.

The Association of Management Consulting and Information Technology recommends

business-friendly means of dispute resolution following mediation clause:

In the event of disputes arising from this contract that cannot be settled amicably

The contracting parties agree to settle the dispute out of court

Settlement of the conflict registered mediators (ZivMediatG) with the focus

Business mediation from the list of the Ministry of Justice. If the

Selection of the business mediators or no agreement can be reached on the content

legal action will be taken no earlier than one month after the failure of negotiations

initiated.

In the event of a mediation that does not take place or is terminated, the following applies in a

Any legal proceedings initiated shall be governed by Austrian law.

All necessary expenses incurred as a result of a previous mediation,

especially those for a legal advisor, can

by agreement in court or arbitration proceedings as “pre-litigation

costs”.

Questions about the General Terms and Conditions should be directed to us at info@websaleexpert.com.