General Terms and Conditions
GENERAL TERMS AND CONDITIONS (GTCs)
Specific-Group Austria GmbH
FOR PROJECT-RELATED ORDERS
Valid from July 1, 2024
I.Scope of application
- The deliveries and services of “Specific-Group Austria GmbH” (hereinafter referred to as “Contractor”) are provided exclusively in accordance with the following General Terms and Conditions (hereinafter referred to as “GTC”) and the provisions of the respective valid price list, unless otherwise agreed in writing. With regard to transactions and contracts with the Contractor, the Client declares that it is not a consumer within the meaning of the Consumer Protection Act. If, by way of exception, they are also used as a basis for legal transactions with consumers within the meaning of the Consumer Protection Act, they shall only apply insofar as they do not contradict mandatory provisions.
- Software support: The “General Terms and Conditions for the Sale and Delivery of Software Support Services” in the 2015 edition of the Austrian Chamber of Commerce’s Association of Management Consultants and Information Technology apply. Should conditions overlap with the Contractor’s GTC, the Contractor’s GTC shall take precedence.
- Programming: The “General Terms and Conditions for the Sale and Delivery of Organization and Programming Services and Terms of Use of Software Products” in the 2015 edition and the “General Terms and Conditions for Management Consultants” in the 2015 edition of the Austrian Federal Economic Chamber shall apply. Should conditions overlap with the Contractor’s GTC, the Contractor’s GTC shall take precedence.
- These GTCs apply to all current and future contractual relationships. This shall apply until such time as the Contractor notifies the Client of amended GTCs. If the Client does not object to the amended GTC in writing and with reasons within 2 weeks of notification, the amended GTC shall be deemed accepted.
- Any conflicting terms and conditions of the Client or other terms and conditions and declarations deviating from these GTC shall be invalid unless they are expressly recognized by the Contractor in writing.
II.Scope and validity of the Contract
- All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company and are only binding to the extent specified in the order confirmation.
- A contract is only concluded with the written order confirmation of the contractor, but at the latest with the acceptance of the delivery or service.
- If the Contractor arranges third-party services at the Client’s request, these contracts shall be concluded exclusively between the Client and the third party.
- The Contractor shall be free from instructions in the production of the agreed work, shall act at its own discretion and on its own responsibility, without restriction as to place of work or working hours.
III.Offer cost estimate
- Unless otherwise agreed, all offers made by the Contractor are subject to change and non-binding. We expressly reserve the right to make technical or other changes.
- Similarly, the information contained in catalogs, brochures, advertisements, price lists, etc. concerning the services offered by the Contractor shall not be binding; only the information expressly confirmed by the Contractor in the order confirmation or the specification according to the contract shall be authoritative.
IV.Performance and monitoring
- The subject of an order can be, for example Global and detailed analyses as preparatory work for software development, creation of individual programs, development and delivery of library (standard) programs, acquisition of usage rights for software products, acquisition of work usage licenses, assistance with commissioning (conversion support), program maintenance, creation of program carriers or other services in the field of electronic data processing.
- Individual concepts and programs shall be developed in accordance with the type and scope of the binding information, documents and resources provided by the client in full and at its own expense. This shall also include practical test data and sufficient test facilities, which the client shall make available in good time, during normal working hours and at its own expense. If the client is already working in live operation on the system provided for testing, the client shall be responsible for securing the live data.
- The basis for the creation of individual programs is the written specification, which is based on information such as examples, access to existing systems, documents, process maps, etc., which the client and its employees, suppliers and consultants have made available to the contractor. Information provided verbally can only be taken into account if it has been recorded in meeting minutes. By signing the acceptance protocol, the client accepts that the specification is the basis for the implementation project. Subsequent change requests may lead to separate deadline and price agreements.
- Individually created software or program adaptations require program acceptance by the client for the respective program package concerned no later than four weeks after delivery. This shall be confirmed by the client in a protocol (check for correctness and completeness on the basis of the service description accepted by the contractor using the test data provided under point IV.2). If the Client allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted as of the end date of the aforementioned period. If the software is used in live operation by the client, the software shall in any case be deemed to have been accepted. Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported to the Contractor by the Client with sufficient documentation. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required after the defects have been rectified. The Client is not entitled to refuse acceptance of software due to minor defects.
- When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
- Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the Contractor shall be obliged to notify the Client of this immediately. If the client does not amend the service description or create the conditions that make execution possible, the contractor may refuse execution. If the impossibility of execution is the result of an omission on the part of the Client or a subsequent change to the service description by the Client, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor’s activities as well as any dismantling costs shall be reimbursed by the Client.
- Program carriers, documentation and service descriptions shall be sent at the expense and risk of the client. Any additional training and explanations requested by the client shall be invoiced separately. Insurance shall only be taken out at the request of the client.
- If content (software, software updates, etc.) is uploaded directly via an Internet connection to a server attributable to the client (client’s server, cloud services, etc.), this infrastructure must meet all technological and legal requirements for the usability and security of the content provided. The Contractor assumes no liability for any defects in the content, consequences of delay, other failures or disadvantages of any kind that are caused by interfaces (servers) not operated, created or maintained by the Contractor. It is the sole responsibility of the Client to create the technical and legal prerequisites for the transfer and operation of the services provided by the Client.
- The Contractor shall be entitled, at its discretion, to use subcontractors in whole or in part to fulfill the order, as well as to have the tasks incumbent upon it performed in whole or in part by third parties. The selection and commissioning of suppliers shall be left solely to the Contractor.
- Unless otherwise agreed, the performance of the contractual services by the Contractor shall be carried out in a manner customary in the industry chosen by the Contractor within the Contractor’s normal working hours. If, at the request of the Client or due to special circumstances that make this necessary, services are provided outside normal working hours, the additional costs shall be invoiced separately.
- The Client expressly agrees that the Contractor may use and process data from the contractual relationship for the training and further development of features supported by artificial intelligence (hereinafter referred to as “AI”). Data means all data relevant to use and processes with the exception of personal data in accordance with the GDPR. If necessary for these purposes, all information received on the basis of the contractual relationship may be used, passed on and disclosed to the extent permitted by law. This shall not give rise to any claims of any kind for the client.
- The Contractor is authorized to incorporate cloud-based Large Language Models (hereinafter referred to as “LLM”) operated on its own infrastructure and publicly available AI-supported tools into its services. If LLM and AI-supported tools are used in applications created for the Client, the Contractor undertakes to inform the Client accordingly. The Contractor assumes no liability for errors and malfunctions of the installed LLM and AI-supported tools. Liability on the part of the Contractor for both slight and gross negligence is excluded to the extent permitted by law.
V.The client’s obligation to cooperate
- The Client undertakes to take all measures that are necessary to fulfill the contract and that are not included in the Contractor’s scope of services. The Client shall perform the duties of cooperation incumbent upon it in such a timely manner that the Contractor is not hindered in the provision of its services.
- If the services are provided on site at the Client’s premises, the Client shall provide the network components, connections, power supply, space for equipment, workstations and server infrastructure required for the Contractor to provide the services to the required extent and quality free of charge.
- The Client shall provide all information, data and documents required by the employee for the execution of the order in the form requested by the Contractor in a timely manner on the agreed dates and at its own expense. The Client shall inform the Contractor of all processes and circumstances that are of significance for the execution of the contract and shall support the Contractor on request in analyzing problems and eliminating faults, coordinating processing orders and coordinating services.
- The Client shall ensure that the Contractor and/or the third parties commissioned by the Contractor have the necessary access to the Client’s premises for the provision of the service.
- Unless otherwise agreed, the provision of materials and cooperation by the client shall be free of charge.
VI.Date of delivery
- Agreed delivery dates are non-binding and subject to self-delivery.
- Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided are not the responsibility of the Contractor and cannot lead to default on the part of the Contractor. Any resulting additional costs shall be borne by the Client.
- The Contractor reserves the right to make partial deliveries and partial services and to invoice them.
- In the event of a temporary and unforeseeable impediment to performance for which the Contractor is not responsible (e.g. official measures, labor disputes, non-delivery by upstream service providers, etc.), the agreed deadline shall be extended and the agreed date postponed by the period of time during which this impediment persists. Claims for damages by the client in this respect are excluded.
- If the service cannot be provided for reasons for which the Client is responsible, the Contractor shall be entitled to withdraw from the contract if the Client fails to comply with a reasonable grace period set by the Contractor. In this case, the Client shall reimburse the Contractor for the expenses for work already carried out and for the reversal of services already rendered as a result of the withdrawal from the contract. If it is impossible or impractical to return the services already rendered by the Contractor, the Client shall compensate the Contractor for their market value.
VII.Fees, taxes and charges
- All prices are quoted in euros excluding VAT. The prices quoted are from the Contractor’s registered office or place of business. The costs of program carriers and hosting as well as any contract fees, costs for packaging, transport costs, transport insurance, installation costs and support costs shall be invoiced separately to the Client in accordance with the statutory conditions.
- For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, consulting, etc.), the workload shall be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the Contractor is not responsible, shall be invoiced as actually incurred.
- The costs for travel, daily and overnight allowances as well as any cash expenses incurred shall be invoiced separately to the client immediately after their occurrence in accordance with the applicable rates. Travel time shall be considered working time.
- If partial payments have been agreed with regard to a claim that is already due, default on only one partial payment – even if the Client is not at fault – shall result in the loss of the deadline and the entire claim shall become due immediately. Failure to comply with the agreed payments shall in any case entitle the Contractor to suspend ongoing work and withdraw from the contract. All associated costs and loss of profit shall be borne by the Client.
- The Contractor reserves the right to supply the Client only against advance payment.
- In the case of orders comprising several units (e.g. programs and/or training courses, implementation in partial steps), the Contractor shall be entitled to issue an invoice after delivery of each individual unit or service.
- If a service has already been provided and the Contractor withdraws from the contract due to a delay in payment by the Client after setting a reasonable grace period, the Client shall pay a penalty of at least 15% of the purchase price as minimum compensation in addition to the expenses mentioned in point VII of these GTC. The Contractor shall be at liberty to claim further damages.
- In the event of non-compliance with the payment deadlines, the Contractor shall be entitled to default interest in the amount of 10% without further reminder. The right to claim further damages remains unaffected. Insofar as the Contractor sends reminders to the Client, the Contractor shall be entitled to charge the Client a processing fee of € 35 per reminder plus postal charges or, in the case of reminder orders, the standard costs of a debt collection service or a lawyer. Any court costs incurred shall be borne in full by the client.
- If the agreed work is not carried out for reasons on the part of the Client or due to a justified premature termination of the contractual relationship by the Contractor, the Contractor shall retain the right to payment of the entire agreed fee less expenses saved. If an hourly fee has been agreed, the fee shall be paid for the number of hours that could have been expected for the entire agreed work, less the expenses saved. The expenses saved are agreed at a flat rate of 30 percent of the fee for those services that the contractor has not yet provided by the date of termination of the contractual relationship.
- Unless otherwise agreed, invoices are due promptly upon receipt. All payments are to be made free of charges and without deduction. Transfers are made at the risk of the client. Collection and discount charges shall be borne by the client.
- Objections to invoiced claims must be raised by the client in writing within 30 days of the invoice date, failing which the claim shall be deemed accepted.
- The Client is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints. The Client may only offset claims of the Contractor against claims that have been established by a court or expressly recognized in writing by the Contractor. The client has no right of retention.
VIII.Retention of title
- The Contractor shall retain ownership and the rights of use to the service provided until full payment of all claims, including future claims, arising from the business relationship. The Client shall only acquire the contractually specified rights of use upon full acquisition of ownership of the service provided.
- Passing on the reserved goods to third parties is expressly prohibited.
- In the event of any default in payment, i.e. also from other and future deliveries and services of the Contractor to the Client or in the event of the Client’s loss of assets, the Contractor may prohibit the further use of the service provided in order to assert the retention of title.
IX.Copyright and Usage
- The Contractor or its licensors shall be entitled to all copyrights to the agreed services. The client shall only be granted the right to use the software after full payment of the agreed remuneration exclusively for its own purposes, only for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on several workstations. Only a license to use the work is acquired through this contract. Distribution by the client is excluded in accordance with copyright law. The cooperation of the client in the production of the software does not result in the acquisition of any rights beyond the use specified in the present contract.
- The client is permitted to make copies for archiving and data backup purposes on condition that no express prohibition by the licensor or third parties applies and that all copyright and proprietary notices are transferred unchanged to these copies.
- Offers, execution documents such as specifications, plans or sketches, samples, catalogs, illustrations and other technical documents etc. of the Contractor remain the intellectual property of the Contractor and are subject to the relevant intellectual property provisions.
- Any breach of these provisions by the Client shall entitle the Contractor to terminate the contractual relationship prematurely with immediate effect and to assert other statutory claims, in particular for injunctive relief and/or damages.
X.Industrial property rights and copyrights of third parties
The Contractor assumes no liability that the contractual products do not infringe any industrial property rights or copyrights of third parties. The Contractor is not obliged to check the industrial property rights and copyrights of third parties. The Contractor al-so expressly assumes no liability for the fact that the Client uses copyrighted goods (e.g. software) without having the necessary licenses.
XI.Warranty, maintenance, modifications
- The parties are aware that it is not possible to exclude errors in software under all application conditions according to the state of the art.
- Technical data and descriptions alone do not constitute a guarantee of specific properties. The Contractor does not guarantee that the program functions will meet the Client’s requirements or that they will work together as selected by the Client.
- Wear and tear, normal wear and tear, improper use, operating errors, negligent behavior on the part of the customer, operation with the wrong type of current or voltage, fire, lightning, explosion or mains-related overvoltage, moisture of any kind and incorrect or missing processing data and/or tools are excluded from the warranty. The warranty is also void if the serial number, type designation or similar markings have been removed or made illegible.
- Unless otherwise agreed, the warranty period shall be 6 months beginning with the transfer of risk.
- The Client shall carefully test the programs provided. Any malfunctions or application errors discovered during the functional test must be reported to the Contractor in writing within a reasonable period of time, but no later than 4 weeks after delivery of the agreed service or, in the case of individual software, after program acceptance in accordance with Section IV.4. The Client’s error report must specify the nature of the error, the application in which the error occurred and any measures that have already been taken internally to rectify the error. If an error report is not submitted or not submitted within the specified deadlines, the program provided shall be deemed to have been accepted. Based on the error report, the Contractor shall carry out an error analysis and, depending on the type and scope of the error, shall undertake the immediate rectification of the error. The improvement shall in any case take precedence over price reduction or rescission/withdrawal from the contract. The client is obliged to cooperate appropriately in any necessary defect rectification procedure. If the analysis of the defect shows that there is no defect which the Contractor would be obliged to rectify, the Client may be charged for all expenses incurred by the Contractor in analyzing the defect on the basis of the agreed hourly rates.
The existence of a defect prior to the handover of the goods and within the warranty period must be proven by the Client. The presumption of defectiveness according to § 924 ABGB is excluded. - The Contractor accepts no liability for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational resources and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage. It is the sole responsibility of the Client to create the spatial and technical conditions for the use of the services provided by the Contractor.
- The Contractor shall not provide any warranty for programs that are subsequently modified by the Client’s own programmers or third parties.
- If the subject of the order is the modification or supplementation of existing programs, the warranty refers to the modification or supplementation. This does not revive the warranty for the original program.
XII.Inspection and transfer of risk
If no complaint is made, the goods shall be deemed to have been delivered completely and properly, unless the defect was not recognizable during the inspection. Insignificant defects which do not impair the functionality of the delivery item do not entitle the client to refuse acceptance of the goods.
XIII.Liability and compensation
- The Contractor shall be liable for damages within the scope of the statutory provisions, insofar as intent or gross negligence can be proven. Liability for slight negligence is excluded. Compensation for consequential damages and financial losses, unrealized savings, loss of interest and damages arising from third-party claims against the Contractor shall be excluded in all cases to the extent permitted by law.
- Claims for damages by the client can only be asserted in court within six months of becoming aware of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
- The client must provide proof that the damage is due to the fault of the contractor.
XIV.Loyalty
The contracting parties undertake to be loyal to each other. The contracting parties shall refrain from any enticement and employ-ment, including via third parties, of (freelance) employees in Austria and abroad – regardless of their status under employment law – or other contractual partners and suppliers of the other contracting party and their affiliated companies (Section 189a Z 8 UGB) who have worked or contributed to the realization of orders between the contracting parties for the duration of the contract and 12 months after termination of the contract. The contracting parties agree that this prohibition on poaching or employing employees or other contractual partners also serves to protect knowledge of the business operations and trade secrets of the respective contractual partner. A breach of this prohibition therefore constitutes a deliberate attempt to harm the offending partner and obli-ges the offending partner to pay the other contractual partner liquidated damages in the amount of one year’s salary of the employee or the annual fee of another contractual partner, but at least EUR 50,000.00 plus statutory VAT.
XV.Data protection
- The client expressly agrees that his data may be processed electronically.
- The Contractor shall be entitled to process and use personal data entrusted to it within the scope of the purpose of the contractual relationship. The Client warrants to the Contractor that all necessary measures have been taken for this purpose, in particular those within the meaning of the Data Protection Act.
- Unless revoked in writing by the Client, the Contractor shall be entitled to name the Client’s company as a reference customer in reference lists, whether in printed, electronic or other form, in the context of editorial articles, publications on the Internet or on data carriers. Text and image elements that are offered for download on the Client’s company website may be used by the Contractor. The client’s company logo and/or logo may also be used as part of the reference.
XVI.Severability clause
Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.
XVII.Other clauses
- The client is not entitled to assign its claims arising from the contract.
- The client waives the right to contest the contract on the grounds of error.
XVIII.Duration of the contract and right of withdrawal
- This contract shall generally end upon completion of the project. Unless otherwise agreed, all contractual relationships may be terminated in writing by the Client without stating reasons subject to a three-month notice period or by the Contractor subject to a six-month notice period to the last day of each calendar month.
- The Contractor shall also be entitled to terminate the contractual relationship with regard to individual components only. The Client shall only be entitled to such termination if this has been expressly agreed.
- Notwithstanding this, the contract may be terminated by either party at any time for good cause without notice. Good cause shall be deemed to exist in particular if a contracting party breaches material contractual obligations or if insolvency proceedings are instituted against a contracting party or a bankruptcy petition is dismissed for lack of assets to cover the costs.
- In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Client shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the Client is not at fault.
- Force majeure, labor disputes, natural disasters and transport blockages as well as other circumstances beyond the Contractor’s control shall release the Contractor from the delivery obligation or allow the Contractor to redetermine the agreed delivery time.
- Cancellations by the client are only possible with the written consent of the contractor. If the Contractor agrees to a cancellation, it shall be entitled to charge a cancellation fee amounting to 30% of the unbilled order value of the overall project in addition to the services rendered and costs incurred.
XIX.Final provisions
- Unless otherwise agreed, the statutory provisions applicable between registered traders shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. Any disputes shall be subject exclusively to the local jurisdiction of the court with subject-matter jurisdiction for the Contractor’s place of business. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply insofar as the Consumer Protection Act and the Consumer Warranty Act do not provide for other mandatory provisions.
- The Client and the Contractor agree to keep the business secrets of the other party confidential. All company-related facts of a technical or commercial nature as well as all confidential business and operational processes and facilities shall be deemed to be business secrets. This shall apply irrespective of how the contracting parties have gained knowledge of such circumstances. In particular, but not exclusively, any price and/or disclosure of the access codes to the Licensed Services, the software itself, or of intentions, ideas, plans or written documents, documents, customer data and other information of any kind, regardless of whether the price and/or disclosure is made verbally, in writing, electronically or in any other way, shall be deemed a breach of this confidentiality obligation. Both contracting parties shall ensure that all employees and involved suppliers of the partner also comply with this confidentiality obligation.
- Amendments to the contract and these GTC must be made in writing, as must any waiver of this formal requirement. There are no verbal collateral agreements.
- The GTC and the relevant texts of the Austrian Federal Economic Chamber are published on the website http://www.specific-group.com and are deemed to have been acknowledged upon conclusion of the contract.
- The application of the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions of the IPRG is expressly excluded.
- The law of the Republic of Austria shall apply.