General Terms and Conditions

Please read our general terms and conditions.

 

1. Scope of validity and contract formation

1.1 The scope of validity of these General Terms and Conditions applies with offers, legal transactions and other services of BOI. The version valid at the time of the conclusion of the contract shall always be decisive. All terms and conditions of the client which conflict with these General Terms and Conditions / deviate from them shall be ineffective unless they have been expressly acknowledged by BOI in writing.

1.2 For the record, the offers of BOI are subject to change, with no binding effect, and they should be understood only as a request for the placement of an order. Contracts entered into under these terms and conditions shall be acknowledged only once the customer’s order has been acknowledged in writing, or actually fulfilled, by BOI.

2. Performance and testing

2.1 The subject of an order is any individually agreed service to be provided by BOI e.g. preparation of organisational concepts, global / detailed analyses, creation of individual programs, involvement in commissioning efforts (conversion support), over-the-phone support and other services.

2.2 Individual organisational concepts and programs are developed depending on the type and scope of the binding information, documents and expedients provided (in full) by the client. This also includes practical test data as well as test options (to a sufficient extent) provided by the client in a timely manner, during normal working hours and at their own expense.

2.3 The basis for the creation of individual programs is the written service description (whether formulated by BOI against cost calculation on the basis of the documents and information that they are provided with, or provided by the client). This service description must be checked by the client for accuracy and completeness, and approved by them. Requests for changes that appear later could lead to separate deadline and price agreements.

2.4 Individually created software / program adaptations require that the program be accepted for the program package in question – this must be done by the client no later than four weeks after delivery. This shall be confirmed in a log by the client. (The check for accuracy and completeness should be based on the specifications accepted by BOI with the test data provided under Point 2.2.). Should the four-week period pass without the client stating their acceptance of the program, the delivered software shall be considered accepted from the end date of said period. Should the client actually use the software, the software shall also be considered accepted. Any occurring defects qualifying as deviations from the written service description, must be reported to BOI by the client with sufficient documentary evidence, so that the problem may be resolved as quickly as possible. In the event that any major defects are reported in writing – this meaning that actual operation cannot be initiated or continued – a new acceptance shall be required after the fault has been remedied. The client cannot refuse to accept software for minor defects.

2.5 When ordering library (standard) programs, the client confirms that they acknowledge the scope of services applicable with the ordered programs at the time that they order them.

2.6 Program media, documentation and specifications shall be distributed at the expense and risk of the client. Any and all additional training and declarations requested by the client shall be invoiced separately. Insurance conditions shall be realised only at the request of the client.

3. Prices

3.1 All prices are in Euros, not including VAT. They apply only for this order. The prices stated are valid from the place of the BOI business. With library (standard) programs, the list prices valid on the day of the order shall apply. With all other services (organisation consulting, programming, training, changeover support, over-the-phone advice etc.), the workload shall be charged at the rates valid on the day of the provision of the services. Deviations from any time costs based on the contract price, for which BOI is not responsible, shall be calculated based on actual yield.

3.2 Incurring cash expenses, charges, travel costs etc. shall be additionally compensated by the client pending relevant invoicing from BOI.

3.3 Cancellations by the client are permissible only pending the written consent of BOI. Cancellation conditions: In the event that expenses have already been incurred for TABEX consulting services or for preparatory work (booking of train / plane tickets), these costs shall be charged to the client (+10% for processing costs). The cancellation fees for TABEX consulting services depend on the deadline: up to 4 weeks before the deadline 0%, up to 2 weeks before the deadline 25%, and within 2 weeks prior to the deadline 50%.

3.4 BOI is authorised to transfer invoices to the client in electronic format. The client states their express consent to the transfer of invoices in electronic format.

4. Delivery deadline

4.1 BOI commits to adhering to agreed fulfilment (completion) dates accureately as possible.

4.2 Target completion dates can only be met if the client completes all necessary tasks and provides all necessary documents in full (in particular: the specifications that they have agreed on pursuant to Pt. 2.3) by the deadlines specified by BOI and fulfilled their obligations to the required extent. BOI shall accept no responsibility for delivery delays and cost increases resulting from information that is incorrect, incomplete or changed at a later time/ subsequently submitted documents, and these shall not result in arrears for BOI. Any and all additional costs in this regard shall be borne by the client.

4.3 If, during the course of the work, it should turn out that it is not possible (factually or legally) to execute the order as per the specifications, BOI must inform the client of the same immediately. If the client fails to change the specifications in this regard (or otherwise to create conditions which allow for the execution of the order), BOI can refuse to execute the order, and withdraw from the contract in writing. The costs / expenses incurred for the activities of BOI up until that point, as well as any dismantling costs, must be borne by the client. BOI shall also retain the right to the agreed fee if execution of the order is prevented by circumstances for which the client is responsible, or if the client refuses the execution of the order. If the client is expected to compensate BOI for damages for which they are responsible (in particular: lost profits), they shall also be required to pay the sum of 30% of the not-yet-billed order value of the overall project, regardless of actual damage. There shall be no valid reduction of claims of BOI for contributory negligence as per § 1304 ABGB.

4.4 For orders which include multiple units or programs, or which extend over a longer period of time, BOI shall be entitled to make partial deliveries / submit partial invoices.

4.5 In the event that an agreed delivery deadline is exceeded owing to the sole fault or unlawful conduct of BOI, the client shall be entitled to withdraw from the order in question by registered letter should the agreed service also not be provided in substantial parts within a reasonable grace period and the client is blameless in this regard.

4.6 Force majeure events, including work disputes, natural disasters and transport locks, as well as other conditions which are beyond the control of BOI, shall relieve BOI of its delivery obligation /allow them to redetermine the agreed delivery time.

5. Payment conditions

5.1 The invoices submitted by BOI shall be payable immediately upon receipt, free of charge and with no deductions. In the case of partial invoices, the payment conditions specified for the entire order shall apply analogously.

5.2 Observation of the agreed payment dates is an essential condition of BOI’s execution of the order / fulfilment of the contract. Non-observation of agreed payments shall entitle BOI to cease ongoing work and withdraw from the contract. All costs resulting from this shall be borne by the client. In case of late payment, default interest shall be charged (5% p.a.).

5.3 The client is not authorised to withhold payments for incomplete total deliveries, guarantee or warranty claims or complaints.

6. Copyright and use

6.1 BOI shall retain the copyrights to works created by BOI and its employees (in particular reports, analyses, expert reports, organisation plans, individual and standard programs, specifications, calculations, figures, data carriers etc.). The client may utilise them solely for purposes included in the contract and only to the extent permitted by the acquired licences (both during and after the end of the contractual relationship), and only after the payment of the agreed fee. The client’s involvement in the production of the software does not give rise to any rights beyond the usage conditions stated in the contract.

6.2 Any copying, duplication, access permit and / or forwarding of works for use by unlicensed or non-entitled users which is not expressly authorised by BOI in advance, is strictly forbidden. The client is allowed to draft copies for archiving and data security purposes on the conditions that the software comes with no explicit prohibition for the licensor or third parties, and that all copyright and proprietary rights are unamended with the transfer of said copies.

6.3 If no contract is entered into, all contractual items and accompanying materials (software, documents, concepts, suggestions, test programs, etc.) must be immediately returned to BOI in full, and they may not be used (or continue to be used).

6.4 If the client violates the provisions included in Point 6.1 and 6.2, this shall entitle BOI to an immediate premature termination of the contractual relationship and to assert other legal claims (in particular: omission and / or damages).

7. Warranty, maintenance, changes

7.1 BOI guarantees that the software meets the functions outlined in the relevant documentation.

7.2 The following troubleshooting prerequisites are applicable: the client must outline the fault in sufficient detail in an error report and this must make sense to BOI; the client must provide BOI with all the documents necessary for eradication of the fault; neither the client nor any third party relevant to the client has interfered with the software in any way; the software is used under the specified operating conditions, in accordance with the relevant documentation.

7.3 Where warranty is to be enforced, improvement must always take precedence over price reduction or conversion. In the event of a justified complaint, the faults in question should be remedied within a reasonable period of time, whereby the client should allow BOI all measures necessary for investigation and fault remedying. Presumption of deficiency pursuant to § 924 ABGB shall be inapplicable.

7.4 BOI shall be responsible for the execution of corrections and additions proven to be necessary up until the delivery of the agreed service which are resultant of organisational and program-related deficiencies for which BOI is accountable, at no charge.

7.5 Costs incurred with assistance, fault diagnosis and error / fault eradication which are attributable to the client, as well as other corrections, changes and additions, shall be assumed by BOI for a fee. This also applies for the eradication of faults in the event of any program changes, additions or other interventions on the part of the client himself or by associated third parties.

7.6 Furthermore, BOI accepts no liability for errors, faults or damage resulting from improper operation, or changed operating system components, interfaces or parameters, or the use of unsuitable organisation materials and data media (insofar as these things are prescribed), or abnormal operating conditions (in particular: deviations from installation and storage conditions), or transportation costs.

7.7 For programs which are subsequently altered by programmers of the customer or of third parties, any warranty on the part of BOI shall be void.

7.8 If the object of the order is modifications with / additions to already existing programs, the warranty shall apply with the modification / addition. The warranty for the original program shall not become valid again as a result of this.

7.9 Warranty claims shall expire six (6) months after handover.

8. Liability

8.1 BOI shall be liable to the client for damage for which they are evidently responsible, only in cases of gross negligence. BOI shall be liable without limitation as far as personal damage is concerned.

8.2 Liability for indirect damage - for example, lost profits, costs associated with interruption in operation, data loss or third party claims - are strictly void.

8.3 Claims for damages shall expire as per statutory regulations; however, this shall happen no later than one year after the acknowledgement of the damage and the responsible party.

9. Data protection, confidentiality

9.1 BOI shall observe unconditional confidentiality with all business matters that it becomes aware of, in particular: company and trade secrets and all information that they receive regarding the type, scope and practical activities of the client. BOI must also observe confidentiality for all of the production content as well as all information and circumstances applicable to them during the creation of the work; including, in particular, those regarding the data of clients of the client and associated third parties.

9.2 The obligation of confidentiality shall continue to apply in full after the end of the contractual relationship.

9.3 BOI must have its employees observe the provisions of §15 of the Data Protection Act.

9.4 You will find here information to the Data Protection Act according to the EU General Data Protection Regulation (GDPR) 2018.

10. Final provisions

10.1 Any changes to this contract or to these General Terms and Conditions must be announced in writing to be valid; this also applies to the revocation of this written form condition. Oral ancillary agreements shall not be valid.

10.2 If any individual provisions of this contract should be or become ineffective, this shall not affect the remainder of this contract. The contract partners shall cooperate in partnership toward the establishment of a regulation which parallels the ineffective provisions as closely as possible.

10.3 Mediation clause: the contract parties mutually agree, in the event of a dispute arising from this contract which cannot be settled amicably, to appoint registered mediators (ZivMediatG) specialising in business mediation (from the list of the Ministry of Justice) with whom to resolve the dispute out of court. Should it fail to be possible to agree on the selection of business mediators or on the content of any given dispute, legal action shall be implemented from one month at the earliest after negotiations have failed. In the event of failed or terminated mediation, Austrian law shall apply with any litigation that is initiated. All necessary expenses that are incurred in connection with prior mediation – including, in particular, those for a consulted legal advisor – can be agreed on (as “pre-litigation costs”) in court or arbitration proceedings.

10.4 Unless otherwise agreed, the legal provisions applicable between the contractors shall apply exclusively in accordance with Austrian law, even if the order is executed abroad.

10.5 In the event of any disputes, only the local jurisdiction for the competent court for the BOI company headquarters shall be entitled to act.