Terms and conditions
General terms and conditions of Digitale Mediensysteme GmbH, Hasnerstr. 123, 1160 Vienna
Status: August 2022
1. SCOPE
1.1 Deliveries and services provided by Digitale Mediensysteme GmbH (hereinafter referred to as DMS for short) are provided exclusively in accordance with the following general terms and conditions and the provisions in the currently valid price lists, unless otherwise agreed in writing.
1.2 Reference is additionally made to the manufacturers' license terms attached to the contract products. These license terms form an integral part of the contract.
1.3 Deviations from these general terms and conditions are only effective if they have been agreed in writing by the parties, or if other purchasing conditions have been expressly accepted in writing by DMS.
2. OFFERS AND CONCLUSION OF CONTRACT
2.1 Offers from DMS are considered subject to change, unless they are expressly marked as binding.
2.2 All offer and/or project documents may neither be reproduced nor made available to third parties without the consent of DMS. They can be reclaimed at any time and must be immediately deferred to the DMS if the order is placed elsewhere.
2.3 The information contained in catalogues, brochures and the like as well as other written or oral statements are only relevant if they are expressly referred to in the order confirmation.
2.4 Subsequent changes and additions to the contract require written confirmation in order to be valid.
2.5 Insofar as the backup of data is not expressly defined as the main or ancillary service of the present contract, this is the sole responsibility of the client and the contractor cannot be held responsible for any loss of data either under compensation law or in any other way.
2.6 Hourly rates, minimum billing periods or flat rates can be found in the respective contract. Expense estimates given are indicative. Billing is based on the actual scope of the services provided. If DMS determines that the quantity estimates have been exceeded, the client will be notified immediately. In this case, the client has the right to refrain from providing further services.
2.7 The subject of an order may be:
• Development of organizational concepts
• Global and detailed analyses
• Preparation of individual programs
• Delivery of library (standard) programs
• Acquisition and delivery of usage rights for software products
• Acquisition of work use permits
• Editorial and design services
• Involvement in commissioning (conversion support)
• Telephone consultation
• Program maintenance
• Preparation of program carriers
• Other services
• Purchase and delivery of hardware products
3. DELIVERY AND SALE OF GOODS
(If the main or ancillary service of DMS consists in the delivery/sale of goods, the following applies in this regard)
3.1 The delivery period starts at the latest on one of the following dates:
a) Date of order confirmation
b) Date of fulfilment of all technical, commercial and other requirements incumbent on the buyer;
c) Date on which DMS receives a deposit or security to be paid before delivery of the goods
3.2 DMS is entitled to carry out and invoice partial or advance deliveries. If delivery on demand has been agreed, the goods are considered retrieved no later than 1 year after ordering.
3.3 The risk is transferred to the customer when the contract product is handed over to the carrier, his agent or other persons named by DMS. If shipping is delayed or becomes impossible through no fault of DMS, the risk is transferred to the customer upon notification of readiness for shipment. The provisions of 3.3 also apply to returns to the customer after removal of defects or paid service.
3.4 The customer must check the goods immediately upon receipt for completeness and consistency in accordance with the invoice or delivery note. If there is no complaint, the goods are considered to have been delivered correctly and completely, unless the defect was not apparent during the inspection. Any transport damage or shortages must be reported to DMS in writing within 2 working days.
3.5 Minor defects that do not impair the functionality of the delivery item do not entitle the customer to refuse acceptance.
4. PROVISION OF SERVICES AND PROGRAMMING SERVICES
(If the main or ancillary service of DMS consists of the provision of services, the following applies in this regard)
4.1 Individual organizational concepts and programs are developed in accordance with the type and scope of the binding information, documents and tools provided in full by the client. This also includes practice-oriented test data and sufficient testing options, which the client provides on time, during normal working hours and at his expense. If the client is already working in real operation on the system provided for testing, the client is responsible for securing the real data.
4.2 The basis for creating individual programs is the written service description, which DMS prepares against cost calculation on the basis of the documents and information provided or provided by the client. This service description must be checked by the client for accuracy and completeness and accompanied by his approval note. Requests for changes that occur later may result in separate appointment and price agreements.
4.3 Individually created software or program adaptations require program acceptance by the respective person concerned no later than four weeks from delivery by the client. This is confirmed in a protocol by the client. If the client allows the period of four weeks to elapse without program acceptance, the delivered software is considered accepted on the end date of the specified period. If the software is used in real operation by the client, the software is considered accepted in any case.
4.4 Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported by the client in sufficient documentation to DMS, which will endeavour to remedy the defect as quickly as possible. If there are significant deficiencies reported in writing, i.e. that actual operation cannot be started or continued, a new acceptance is required after the defect has been rectified.
4.5 When ordering library (standard) programs, the client confirms knowledge of the scope of services offered by the ordered programs.
4.6 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, DMS is obliged to immediately notify the client of this. If the client does not change the service description to the effect or creates the condition that execution is possible, DMS may reject the execution. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change of the service description by the client, DMS is entitled to withdraw from the order. The costs and expenses accrued up to that point for the activities of DMS as well as any dismantling costs must be reimbursed by the client.
4.7 Training and explanations requested by the customer/client will be invoiced separately.
5. DELIVERY DATE
5.1 Dates and delivery periods are non-binding, unless otherwise expressly agreed in writing. The specification of specific delivery periods and delivery dates by DMS is subject to the correct and timely delivery to DMS by suppliers and manufacturers.
5.2 Delivery and service delays due to force majeure or other unforeseeable events which make delivery significantly more difficult for DMS or make it impossible and are not attributable to DMS (this includes in particular war, war-like events, official orders, failure to issue export, import or transit permits, national measures to restrict trade traffic, strike, lockout and other operational disruptions of any kind, traffic disruptions, regardless whether these events occur at DMS, their suppliers, or their Subcontractors entitle DMS to postpone delivery or service for the duration of the hindrance plus a reasonable start-up period or — if not yet fulfilled — to withdraw from the contract in whole or in part. In any case, the delivery period is extended by the period during which the buyer himself is in default of fulfilling his contractual obligations.
5.3 The target performance dates can only be met if the customer/client has made all necessary preparations on the agreed dates and provides documents/information in full and fulfills his obligation to cooperate to the required extent.
5.4 Delivery delays and cost increases resulting from incorrect, incomplete or subsequently changed information and documents made available are not attributable to DMS and cannot result in default on the part of the contractor. The client shall bear the resulting additional costs.
6. PRICES, TAXES AND FEES
6.1 All prices are in euros excluding sales tax. They only apply to the present order. The prices listed are from the registered office or office of DMS. Sales tax and other statutory charges in the country of delivery as well as packaging, transport costs, transport insurance and processing fee are borne by the customer/customer. Expenses related to environmental protection as well as public and non-public fees and duties, such as in particular ARA and copyright duties and other comparable expenses, are invoiced separately. The costs of data carriers can be charged separately by DMS.
6.2 DMS reserves the right to increase the price appropriately if, after conclusion of the contract, DMS increases in costs — in particular as a result of price increases by suppliers or exchange rate fluctuations — occur at DMS. These will be proven to the customer upon request.
6.3 Should DMS provide its services within the framework of continuing obligations (e.g. support contracts, operational management, etc.), the stability of the charges will be agreed in accordance with the consumer price index 2020 published monthly by the Austrian Federal Statistical Office or the index that replaces it. Prices are adjusted in September by the (relative) difference between the index figures for the month of July of the current year and the previous year. If the monthly index figure is more than 5% higher than the one last used for the price adjustment, DMS can also immediately adjust the prices by the corresponding difference. In this case, the difference in the index number will be made in the following September based on the last adjustment made with that of July of the corresponding year.
6.4 For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion support, telephone consultation, etc.), the workload is charged at the rates valid on the day the service is provided. Deviations from the time required for the contract price, which are not attributable to DMS, are calculated according to actual costs.
6.5 The costs of travel, daily and overnight allowances will be charged to the client separately in accordance with the applicable rates. Travel time is considered working time.
6.6 If fixed deadlines for the provision of services have been agreed in the specific contract or order, the customer or DMS must provide the resources/access necessary for performance. If an agreed provision of services is not possible due to unprovided resources/access, DMS may charge up to 30 percent of the service fee for the provision.
6.7 DMS expressly reserves the right to make reasonable partial deliveries and to invoice them.
7. PAYMENT
7.1 The invoices submitted by DMS, including sales tax, are payable no later than 14 days from receipt of the invoice without any deduction and free of charges. For partial invoices, the payment terms defined for the entire order apply analogously.
7.2 DMS is entitled to offset payments made by the customer/client first against their older debts. If costs and interest have already been incurred as a result of default, DMS is entitled to offset the payment first against the costs, then against the interest and finally against the main services.
7.3 The offsetting or assertion of a right of retention due to counterclaims not recognized by DMS or not legally established by DMS is excluded. The customer/client is not entitled to withhold payments due to incomplete total delivery, warranty or warranty claims or complaints.
7.4 Insofar as there is a deviation from the above payment terms, DMS may at any time either demand delivery step by step against cash payment, advance payment or security deposit. All outstanding claims, including those for which DMS has accepted bills of exchange or for payment in installments, are due immediately. The same applies when important reasons arise.
7.5 For orders that include several units (e.g. programs and/or training, implementation in stages), DMS is entitled to invoice each individual unit or service after delivery.
7.6 Compliance with the agreed payment dates is an essential condition for DMS to carry out the delivery or performance of the contract. Failure to comply with the agreed payments entitles DMS to stop ongoing work and to withdraw from the contract. All associated costs and loss of profit are to be borne by the client. In the event of late payment, interest on arrears of 8 percentage points above the base interest rate is charged. In the event of failure to comply with two installments for partial payments, DMS is entitled to allow lost appointments to take effect and to make accepted payments due.
8. EXPORT AND IMPORT PERMITS
8.1 Products and technical know-how delivered by DMS are intended to be used and to remain in the country of delivery agreed with the customer. The re-export of contract products - individually or in system-integrated form - is subject to approval by the customer and is generally subject to the laws of the Republic of Austria or the other country of delivery agreed with the customer. The customer must independently inquire about these regulations from the relevant Austrian authority or, according to US regulations, from the US Department of Commerce, Office of Export Administration, Washington, D.C. 20230. Regardless of whether the customer indicates the final destination of the delivered contract products, it is the customer's sole responsibility to obtain any necessary approval from the relevant competent authorities before exporting such products.
8.2 Any further delivery of contract products by customers to third parties, with or without the knowledge of DMS, requires the transfer of export approval conditions at the same time. The customer is liable to DMS for the proper compliance with these conditions. Embargo provisions in accordance with international agreements or by international organizations (e.g. UN) must be complied with.
9. EU IMPORT SALES TAX
9.1 Insofar as the customer/customer is based outside Austria, he is obliged to comply with the regulation of the import sales tax of the European Union. This includes, in particular, the provision of the sales tax identification number to DMS without a separate request. On request, the customer/customer is obliged to provide DMS with the necessary information regarding his status as an entrepreneur, regarding the use and transportation of the delivered goods and with regard to the statistical reporting requirement.
9.2 The customer is obliged to reimburse any expenses (in particular a processing fee) incurred by DMS as a result of faulty or incorrect information provided by the customer regarding import sales tax.
9.3 Any liability of DMS arising from the consequences of the customer's information on import sales tax or the relevant data relating to this is excluded, unless DMS has acted intentionally or grossly negligent.
10. PROHIBITION OF ASSIGNMENT
10.1 The assignment of claims against DMS to third parties is excluded unless DMS has expressly agreed to the assignment.
11. RETENTION OF TITLE
11.1 The contract product remains the property of DMS until all claims arising from this contract have been satisfied.
11.2 The customer is revocably entitled to transfer the reserved goods in the ordinary course of business subject to retention of title, provided that he in turn resells under his own retention of title, but not to pledge or transfer security in any form. If third parties access the reserved goods, the customer must point out the ownership of DMS and inform DMS immediately. The customer must clearly mark the property of DMS.
11.3 When combining, processing or mixing the reserved goods with goods not belonging to DMS, DMS acquires joint ownership in proportion to the invoice value of the reserved goods to the remaining goods.
11.4 The assertion of retention of title or seizure of the delivery item by DMS is not considered a withdrawal from the contract.
11.5 The customer/customer assigns its claims arising from the transfer of the reserved goods in advance to DMS in the respective invoice value of the reserved goods. The customer/customer remains entitled to collect money even after the assignment. Notwithstanding this, DMS is entitled to collect as part of the ordinary course of business, but will only make use of this right in the event of late payment or in the event of an application for the opening of bankruptcy or settlement proceedings by the client/customer. At the request of DMS, the client/customer will name the assigned claims, provide required information, hand over documents and notify the debtors of the assignment. DMS may disclose this assignment at any time to secure its payment claims.
11.6 Items delivered for testing and demonstration purposes remain the property of DMS. They may only be used by the customer beyond the test and demonstration purpose on the basis of a separate agreement with DMS.
12. COPYRIGHT AND USE
12.1 The client/customer or its licensors are entitled to use the work to the extent agreed. Unless otherwise agreed, the customer/customer is exclusively entitled, after payment of the agreed fee, to use the software exclusively for its own purposes, only for the hardware specified in the contract and to the extent of the purchased number of licenses for simultaneous use on several workstations. Should the client/customer (or his employee) obtain co-copyrights in the production of the software, he — unless otherwise agreed — grants DMS the exclusive right to use and exploit these co-copyrights.
12.2 The client/customer is permitted to make copies for archiving and data backup purposes on the condition that the software does not contain an express prohibition on the part of the licensor or third parties and that all copyright and ownership notices are transferred unchanged into these copies.
12.3 Should disclosure of the interfaces be necessary to establish interoperability of the software in question, this must be commissioned by the client/customer from DMS in return for a cost refund. If DMS does not comply with this requirement and is decompiled in accordance with copyright law, the results are to be used exclusively to establish interoperability.
13. RIGHT OF WITHDRAWAL
13.1 In the event that an agreed delivery time is exceeded due to the sole fault or illegal action of DMS, the client/customer is entitled to withdraw from the order in question by registered letter, even if, within the reasonable period of grace, the agreed service is not provided in significant parts and the client/customer is not at fault for it.
13.2 Force majeure, labor disputes, natural disasters and transport blockages as well as other circumstances beyond the control of DMS release DMS from its delivery obligation and allow it to redefine the agreed delivery time.
14. RIGHT OF SUBSTITUTION
14.1 DMS reserves the right to have services to fulfill this contract also carried out by subcontractors.
14.2 This is provided that, on the one hand, these persons and/or companies have the necessary professional (i.e. theoretical and practical) qualification to provide the services in accordance with the contract and, on the other hand, that these persons are also contractually bound to DMS in such a way that the performance of the contractual services is ensured.
15. WARRANTY, MAINTENANCE, CHANGES
15.1 In the event of defects in hardware used/delivered/sold by DMS (or its vicarious agents), the warranty and guarantee provisions/restrictions of the manufacturer or sub-supplier apply in principle. These provisions become an integral part of the present contract. The following provisions are agreed in addition to these provisions:
15.2 The warranty period starts at the earliest on the date of delivery. If DMS operating and maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used that do not meet the original specifications, any warranty is void insofar as the defect is attributable to this. This also applies if the defect is due to improper use, storage and handling of the devices, or third-party intervention, such as opening devices. Minor deviations in color, dimensions and/or quality and performance characteristics of the goods do not trigger warranty rights.
15.3 The customer/customer must immediately report defects in writing.
15.4 Complaints are only valid if they concern reproducible defects and if they are documented in writing within 4 weeks of delivery of the agreed service or, in the case of individual software, after program acceptance. If the complaint is justified, the defects will be remedied within a reasonable period of time, with the client allowing DMS to take all measures necessary to investigate and rectify the defect.
15.5 Costs for assistance, fault diagnosis and troubleshooting for which the client is responsible, as well as other corrections, changes and additions, will be carried out by DMS against payment. This also applies to the correction of deficiencies if program changes, additions or other interventions have been made by DMS itself or by third parties.
15.6 Furthermore, DMS assumes no liability for errors, faults or damage that are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational equipment and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from installation and storage conditions) and transport damage.
15.7 Any warranty provided by DMS is void for programs that are subsequently modified by the client's own programmers or third parties.
15.8 Insofar as the subject matter of the order is to change or supplement existing programs, the warranty relates to the change or addition. This does not revive the warranty for the original program.
15.9 Warranty and compensation claims against DMS are only available to the direct customer/customer and are not transferable.
16. LIABILITY
DMS is liable for damage, provided intent or gross negligence is proven, within the framework of legal regulations. Liability for slight negligence, compensation for sequential damage, pure financial losses, lost profit, lost savings, interest losses and damage arising from third-party claims against the buyer are excluded. DMS's liability for all claims made by the customer/customer is, irrespective of their legal basis, limited to the order value of the service/delivery that caused the damage or is the subject of the claim or is directly related to it.
17. ADVERTISING
The client/customer declares his express consent to the transmission of advertising and information material from DMS by post or e-mail.
18. MISCELLANEOUS
Should individual provisions of this contract be or become invalid, the effectiveness of the remaining provisions shall not be affected. The invalid provision must be replaced by a valid provision that comes as close as possible to the intended goal.
19. JURISDICTION AND CHOICE OF LAW
The court responsible for the district of the Inner City of Vienna district court has jurisdiction to decide all disputes arising from the contract — including those relating to its existence or non-existence. The contractual relationship is subject to Austrian law, with the exception of referral standards. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
