Terms and conditions, 2015 version

GENERAL TERMS AND CONDITIONS for the provision of organisational and programming services, the granting of licences and other rights to use programs, and the sale and delivery of software products by MicroSea System Solutions GmbH (hereinafter MicroSea), Handelskai 94–96, 1200 Vienna.

1. General provisions

Business dealings with MicroSea are governed exclusively by MicroSea’s general terms and conditions. The terms and conditions of MicroSea’s contracting partners, hereinafter the Customer, do not form part of the contract and are expressly rejected by MicroSea. Other terms and conditions do not bind MicroSea even if MicroSea does not object to them again when the contract is concluded. MicroSea’s general terms and conditions are deemed accepted no later than upon receipt of MicroSea’s services.

All orders and agreements are legally binding only if countersigned in writing by authorised representatives of MicroSea, and bind MicroSea only to the extent stated in the order confirmation. MicroSea’s quotations are generally non-binding.

2. Scope of the order

2.1. MicroSea develops individual software and database concepts and specifications (requirements descriptions) for bespoke software on the basis of complete, binding information and documents supplied by the Customer. This includes the necessary test data to the extent requested by MicroSea and the testing facilities specified by MicroSea, which the Customer must provide in good time and free of charge. If the Customer is already using the equipment provided for testing in live operation, the Customer alone is responsible for backing up live data.

2.2. The contractual basis for MicroSea’s services is the written service description (technical documentation), prepared by MicroSea at the Customer’s expense on the basis of information provided by the Customer. The Customer must check this service description for accuracy and completeness and confirm its accuracy and completeness to MicroSea in writing. Subsequent changes to the service description must be commissioned and paid for separately.

2.3. Software and program modifications created by MicroSea for the Customer must be accepted by the Customer within four weeks of delivery. Acceptance takes place by signing an acceptance report. If the Customer does not sign the acceptance report within the four-week period or uses the software supplied by MicroSea in live operation, MicroSea’s delivery is deemed accepted.

If MicroSea’s deliveries deviate from the service description, the Customer must notify MicroSea immediately and describe the deviations precisely. If deviations from the service description prevent the software from being used or continuing to be used in live operation, acceptance must be repeated once the condition specified in the service description has been achieved.

2.4. If performance of the order according to the service description proves to be factually or legally impossible, MicroSea must inform the Customer immediately. If the Customer does not amend the order to make performance possible, MicroSea may refuse further performance and withdraw from the contract immediately. If MicroSea withdraws, it is entitled to payment and reimbursement of costs for services provided up to withdrawal.

2.5. Program media, documentation and service descriptions are dispatched at the Customer’s expense and risk. Training services provided by MicroSea must be paid for separately by the Customer.

2.6. MicroSea is entitled to have its services performed by third-party companies without restriction.

3. Prices

3.1. All prices are in euros, plus VAT, ex works MicroSea. The costs of program media (such as CDs, DVDs, USB sticks and online storage or cloud services) and any contract duties are invoiced separately. Prices are non-binding unless MicroSea expressly agrees to binding prices.

3.2. Software libraries and standard programs are charged at MicroSea’s list prices valid on the delivery date. All other services (organisational consulting, programming, training, migration support and telephone advice) are charged according to the work involved at the rates valid on the date the service is provided.

3.3. Where billing at hourly rates is agreed, MicroSea’s hourly rates published on its website at the time the service is provided apply.

3.4. MicroSea may claim cost increases arising after conclusion of the contract. This applies in particular to increases in labour, material and other costs underlying MicroSea’s price calculation.

3.5. Travel expenses, daily allowances and accommodation allowances are invoiced separately to the Customer at the applicable rates. Travel time counts as working time.

4. Delivery dates

4.1. MicroSea will adhere as closely as possible to the agreed performance or completion dates once the Customer has provided all information necessary to process the order.

4.2. MicroSea is not responsible for delivery delays or cost increases caused by incorrect, incomplete or subsequently amended information from the Customer. The Customer bears any additional costs incurred by MicroSea as a result.

4.3. MicroSea is entitled to make and invoice partial deliveries where the services to be provided are divisible.

5. Payment

5.1. Unless otherwise agreed, invoices issued by MicroSea are payable within 14 days of receipt, without deductions and free of charges.

5.2. MicroSea may suspend its services if the Customer is in payment default. MicroSea may withdraw from the contract if the Customer fails to remedy the default after being granted a grace period of five working days and being notified of the intended withdrawal.

If the Customer is in payment default, MicroSea may also block the Customer’s access to the software until all outstanding amounts have been paid in full, provided the Customer has first been reminded, granted a 14-day grace period and warned of the access restriction, and the grace period has expired without payment. In this case, the Customer remains obliged to pay the contractual fees, particularly monthly licence and maintenance fees. To enforce this access restriction, MicroSea may also independently access the servers on which the partner operates the software. The partner must grant MicroSea this access and take all necessary action, particularly providing the required access information and, where the software is operated on third-party servers, making the necessary declarations to third parties.

5.3. The Customer is not entitled to withhold payments on the grounds of alleged defects or offset its own claims against the fees owed to MicroSea.

6. Place and time of performance

Unless another place of performance is expressly agreed, the place of performance is MicroSea’s current management headquarters. Unless expressly agreed otherwise, MicroSea will provide services during the business hours published on its website.

7. Copyright and use

7.1. All copyright in services provided by MicroSea, such as programs and documentation, remains with MicroSea or its licensors. After payment of the agreed fee, the Customer receives the right to use the software supplied by MicroSea exclusively for its own purposes, exclusively on the hardware stated in the service description, and only to the extent of the number of licences purchased for simultaneous use at multiple workstations. Transfer of this right of use to third parties, whether for payment or free of charge, is prohibited.

The Customer may not distribute items subject to MicroSea’s copyright or its licensors’ rights, particularly software and programs. The Customer acquires no rights in the subject matter of the contract by participating in software development. Any infringement of the Contractor’s copyright gives rise to claims for damages, with full compensation payable in such a case.

7.2. The Customer may make copies for archiving and backup purposes provided the software contains no express prohibition by the licensor or third parties and all copyright and ownership notices are reproduced unchanged in those copies.

7.3. Where disclosure of interfaces is necessary to achieve interoperability of software supplied by MicroSea, the Customer must commission MicroSea to make that disclosure. MicroSea is entitled to payment at the applicable rates.

8. Customer’s right of withdrawal

8.1. If MicroSea exceeds agreed delivery periods, the Customer may grant a grace period of at least three weeks and declare withdrawal from the contract if the agreed services are not provided, at least in their essential parts, within that grace period.

8.2. Force majeure, labour disputes, natural disasters, transport restrictions and other circumstances beyond MicroSea’s control release MicroSea from its delivery obligation until these impediments cease.

8.3. Cancellations by the Customer require MicroSea’s written consent. If MicroSea agrees to terminate the contract, it may charge, in addition to the contractual fee for services already provided, a cancellation fee of 30% of the unperformed portion of the order.

9. Warranty and modifications

9.1. Notices of defects are valid only if submitted in writing immediately, and no later than four weeks after delivery and acceptance under clause 2.4, with a precise description of the defects. Where a notice of defects is justified, MicroSea will remedy the defects within a reasonable period insofar as they can be remedied. The Customer must provide the assistance necessary to allow prompt and unobstructed rectification. A right to a price reduction for remediable defects is excluded.

Claims for a price reduction are also excluded for irremediable defects that do not impair the functioning of the delivered software (minor defects).

9.2. The Customer must separately pay the costs of diagnosing and resolving faults for which it is responsible. This also applies to rectification of defects where program changes, additions or other interventions have been made by the Contractor itself or by third parties.

9.3. MicroSea provides no warranty for errors, faults or damage resulting from improper operation or storage, modified operating system components, interfaces and parameters, unsuitable organisational tools or data media, or transport damage.

9.4. All warranty coverage ceases if the Customer subsequently modifies programs supplied by MicroSea or commissions third parties to modify them.

9.5. Where an order concerns modification or extension of existing programs, the warranty covers only that modification or extension. It does not revive the warranty for the original program.

9.6. MicroSea warrants that the items it supplies have the characteristics normally expected of such items in commercial dealings. MicroSea warrants additional characteristics only if it has confirmed them in writing.

9.7. Under the Product Liability Act, MicroSea is not liable for property damage suffered by a business operator.

10. Liability

MicroSea is liable for damage caused intentionally or by gross negligence. The Customer must prove that MicroSea acted intentionally or with gross negligence. Liability for slight negligence is excluded.

11. Loyalty

The contracting parties undertake to act loyally towards each other. They will refrain from soliciting the other party’s employees, including through third parties, throughout the contract and for 12 months after termination and full completion of the contractual work. A party breaching this obligation owes the other party a contractual penalty of EUR 20,000, irrespective of proof of fault or actual loss, which is not subject to judicial reduction. Claims for further damages remain unaffected.

12. Confidentiality

The contracting parties must keep the details of their contractual relationship confidential and protect the other party’s business and/or trade secrets that become known to them during that relationship.

The Customer undertakes to use all information received from MicroSea in any form during the business relationship exclusively for the purposes and within the scope of this contractual relationship, otherwise treating it as strictly confidential and refraining from disclosing confidential information to third parties. This includes, in particular, all information about the contractual software, its source code, online visualisation, configuration and/or process representations, ordering over a network and/or their development; other technical implementation details; other business matters of MicroSea, its affiliated companies, customers and suppliers; and information about this contract, including any attachments and annexes, and the related contractual discussions and negotiations.

The Customer must take appropriate precautions to prevent unauthorised persons from obtaining confidential information. It must bind potential recipients, particularly employees and other persons engaged to perform this contract, to confidentiality and compliance with Section 15 of the Data Protection Act, and ensure such compliance.

Where disclosure of information is legally mandatory, the Customer will notify MicroSea immediately to enable it to take appropriate measures to preserve the greatest possible confidentiality.

Where confidential information is contained in written documents and/or recorded or stored on other media, copies may be made only for the purposes and within the scope of this contractual relationship. The Customer expressly acknowledges that it has no right of retention of any kind over these documents. They must be returned to MicroSea immediately, ensuring that no copies or other records are retained and that all electronically stored confidential information is deleted, once the contractual relationship ends or MicroSea requests this in writing.

The obligations under this confidentiality agreement survive the contractual relationship unless the parties expressly agree otherwise.

For each breach of this confidentiality agreement, the Customer must pay a contractual penalty of EUR 75,000, irrespective of damage or fault and without judicial reduction. MicroSea may also claim damages exceeding the contractual penalty.

13. Severability

If individual provisions of contracts between the parties are or become invalid, the remaining content of those contracts remains unaffected. The parties will cooperate to find a provision that comes as close as possible to the invalid provision.

14. Applicable law and jurisdiction

Austrian law applies exclusively. The place of jurisdiction is Vienna.

15. Retention of title

MicroSea’s deliveries remain its property until payment of all claims, including future claims and, in particular, any outstanding balance on a current account, to which MicroSea is entitled on any legal grounds. This also applies where payments are made towards specifically designated claims.

MicroSea must be notified immediately of any attachment or other claim by third parties against items owned by MicroSea. The Customer must cooperate in every way and provide the assistance necessary to enforce MicroSea’s ownership rights. The Customer bears the resulting costs.

Without MicroSea’s express written consent, the Customer may not resell items supplied by MicroSea to third parties.

16. Written form

Contracts, amendments and additions to contracts, and all declarations by the parties concerning those contracts, amendments and additions are valid only if made in writing. The written form requirement also applies to any agreement to waive that requirement.

17. Period of validity and amendments

The current version of MicroSea’s general terms and conditions is published with a digital signature on www.microsea.at.