General Terms & ConditionsGeneral Terms & Conditions
General terms and conditions of grommunio GmbH, Donau-City-Str. 7, 1220 Vienna , Austria
(hereinafter referred to as “Contractor”)
1. Scope of contract and validity
These general terms and conditions (“GTC”) apply exclusively to all offers and contracts of the contractor with its contractual partners (“client”) for the provision of services (“services”) and via grommunio standard software (“deliveries”). The services are in particular the provision of service and maintenance, as well as training.
The following order of priority applies to offers and contracts for services and deliveries:
- Offer of the contractor
- these terms and conditions
The “General Terms and Conditions of grommunio GmbH for service and maintenance” (T&C) apply to all offers by the contractor for services.
These terms and conditions as well as the T&C are an integral part of every contractual relationship that is concluded with the contractor. The client declares that he is familiar with these terms and conditions and the terms and conditions and that he agrees to them.
Deviations from these terms and conditions and the T&C are only binding for the contractor if they have been agreed in writing and signed.
The customer’s terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. General terms and conditions of business or purchase of the client only apply if the contractor expressly confirms their validity in writing in advance.
By accepting the contractor’s offer, the client declares his consent to the agreement of any provisions in the offer that deviate from dispositive law, these terms and conditions or T&C.
Contract and business language is German.
2. Offer, conclusion of contract, subject matter of the contract
Offers are generally non-binding.
The contract is only considered to be concluded when the contractor has sent a written order confirmation after receiving the order from the client.
Any conditions that differ from the offer in the order or that are not regulated in the offer of the contractor shall not become part of the contract unless they are expressly confirmed by the contractor in the order confirmation or otherwise in writing.
Changes to the contract, cancellations and other agreements require the express written confirmation of the contractor to be effective.
After the conclusion of the contract, the client must notify the contractor immediately of any changes to facts on which the contractor has based the calculation of the offer and the implementation of the contract or which may require changes in the implementation of the delivery or the provision of the services. In this case, the contractor is entitled to make appropriate adjustments to the contract or price. In the event of significant changes in the facts, the contractor is also entitled to withdraw from the contract.
The contractor is entitled to have the contract carried out (in whole or in part) by expert, employed employees or commercial / freelance cooperation partners.
With the beginning of the contract fulfillment by the contractor, the client accepts the content of the offer and the order confirmation including these GTC and T&C as the exclusive content of the contract.
In the case of delivery of grommunio standard software, the client confirms knowledge of the scope of services of the ordered programs with the order. Any additional training and services requested by the client will be invoiced separately.
3. Prices, Taxes and Fees
All prices are in euros plus the statutory sales tax. They only apply to the respective individual contract. The prices quoted are from the place of business of the contractor.
The list prices valid on the day of delivery or provision of the service apply. The services provided by the contractor are invoiced based on the actual expenditure immediately after the services have been provided or monthly if the contract is longer than one month.
The cost of travel, daily and overnight allowances will be invoiced to the client separately according to the applicable rates. Travel times shall be deemed to be working time.
4. Delivery date
The contractor endeavors to meet any agreed deadlines for deliveries or the provision of services as precisely as possible, but these are non-binding. (Compensation) The client is not entitled to any claims arising from any non-compliance with deadlines or dates.
In the case of contracts that include several units or programs, the contractor is entitled to carry out partial deliveries or to issue partial invoices.
Performance obstacles for which the contractor is not responsible entitles the contractor to postpone the deliveries / services and / or any dates agreed in writing for the duration of the hindrance and an appropriate start-up time. This also applies if such events occur during an existing delay. It is irrelevant whether these circumstances occur with the client, with the customer itself or with one of its suppliers / subcontractors.
The invoices submitted by the contractor, if applicable, including sales tax are payable net upon receipt of the invoice without any deduction and free of charge. For partial invoices, the terms of payment specified for the entire order apply analogously. Payments by the client are only deemed to have been made when they are received on the contractor’s business account.
Any difficulties in transferring invoice amounts are at the expense of the client. The contractor reserves the exclusive right to decide on which incoming payments from several claims are credited. Within the same claim, the incoming amounts will be credited first at the expense of an (extra) judicial, then against interest and finally against the capital.
In the case of orders that include several units (e.g. training, implementation in partial steps), the contractor is entitled to invoice each individual unit or service after delivery.
Compliance with the agreed payment dates is an essential condition for the execution of the delivery or the provision of the service.
If the financial situation of the client is unfavorable from the point of view of the contractor or if he is in default of payment, the contractor is entitled to
- the fulfillment of one’s own obligation, including those from a different title to be provided to the client, regardless of the type, to postpone until payment and to withhold the delivery or to interrupt or discontinue the provision of the services;
- to make the entire still open price or fee due (loss of deadline);
- to claim security also not yet due claims from all agreements at the choice of the contractor;
- from the due date, interest on arrears in the amount of the usual bank rate for overdrafts, but at least 12% interest p.a. to be charged;
- to withdraw from the contract if a reasonable grace period is not met.
The client is not entitled to withhold payments due to incomplete (total) delivery, guarantee or warranty claims or complaints.
The client is not entitled to offset any claims owed against the contractor against a claim of the contractor or to assign or pledge any claims owed against the contractor to third parties, natural or legal persons (offsetting and assignment prohibition).
6. Retention of Title
The delivered goods remain the property of grommunio GmbH until the purchase price has been paid in full. Prior to the transfer of ownership, pledging, assignment by way of security, processing or redesign without the express consent of grommunio GmbH is not permitted. Grommunio GmbH retains ownership of the delivery item until all payments from the business relationship with the customer have been received. In this case, the retention of title also extends to the recognized balance if grommunio GmbH books claims against the customer in current invoices (current account reservation). The customer is entitled to resell the goods in the ordinary course of business. The customer already now assigns to grommunio GmbH all claims in the amount of the gross invoice amount that arise from the resale to his customers or third parties. This applies regardless of whether the goods have been processed or not. The customer remains authorized to collect the claim after the assignment. grommunio GmbH can choose to collect the claim itself. grommunio GmbH will not collect the claim as long as the customer meets his payment obligations towards grommunio GmbH and is not in default. In the event of default in payment, the customer is obliged to provide all information required to collect the claim and to support grommunio GmbH in collecting the claim. grommunio GmbH is obliged to release the existing securities at the customer’s request insofar as their value exceeds the value of the existing claims by more than 20%. The selection of the securities to be released is at the discretion of grommunio GmbH. The corresponding security rights are transferable to third parties.
7. Copyright and use of supplies and services:
The client receives the non-exclusive and non-transferable right to use the results of the services exclusively for internal company use for the purpose defined in the contract. All other exploitation or usage rights remain with the AN, regardless of whether the service was developed by the AN alone or by both parties.
The use of the results of the services provided for companies affiliated with the client requires a separate, written agreement.
The client is not entitled to make the results of the services available to third parties, in part or in full, against payment or free of charge, or to make them available or to rent them out.
The contractor is entitled to develop, use, offer and license services and deliveries that are similar to or related to the services or deliveries that were provided or developed for the client.
Any violation of the contractor’s (copyright) rights will result in corresponding (compensation) claims.
8. Right of withdrawal
The contractor is entitled to cancel the contract concluded with the client:
- in the event of repeated or serious breach of the contract or these general terms and conditions;
- in the event of a deterioration in the client’s economic circumstances;
- if the client is acquired by a competitor of the contractor;
- in the case of the opening of insolvency proceedings against the company of the client up to six months after the opening of the insolvency proceedings within the meaning of §25a IO;
- due to the opening of insolvency proceedings and the existence of an important reason, such as in particular the under para. 1.) a. or c. reasons for termination mentioned in this provision;
- if the client’s company does not continue in insolvency proceedings;
- in the event that the client is in default with the fulfillment of contractual obligations that have become due after the opening of insolvency proceedings;
- in the event of breach by the client of ancillary obligations agreed in the contract or in these terms and conditions;
- if the termination of the contract is essential to avert personal or economic disadvantages for the contractor.
In the event that insolvency proceedings are opened against the client’s company, the contractor reserves the right to change the terms of payment or performance, in particular to switch to step-by-step performance or to oblige the client to make advance payments; in the case of the contractor’s obligation to provide advance payment, this will be canceled or the contractor will only provide its services in the future against a deposit by the client.
Force majeure, labor disputes, natural disasters and transport bans as well as other circumstances that are beyond the control of the contractor release the contractor from the obligation to deliver or from the obligation to provide the services or allow the contractor to redefine the agreed delivery or performance time.
Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge a cancellation fee of 30% of the not yet invoiced order value of the overall project in addition to the services provided and costs incurred.
If the customer concludes a contract with grommunio GmbH as a consumer and the customer and grommunio GmbH use only means of remote communication for the contract negotiations and the conclusion of the contract (e.g. ordering via an online shop or trading platforms as well as telephone or fax), the customer is entitled to As a rule, you have a statutory right of withdrawal, which grommunio GmbH will instruct you about separately.
10. Warranty, maintenance, changes
In the case of services, the contractor guarantees that
- the services are provided in accordance with the state of the art;
- A high level of care and quality is applied in the performance of the contract;
- Only competent staff is used to provide the service.
If responsibility for success is expressly agreed in the contract, the contractor guarantees that the services provided correspond to the contractually agreed requirements in the matters essential to the client and are not subject to errors which, on the other hand, significantly cancel or reduce their suitability; this guarantee also applies to deliveries. In addition, the contractor does not make any performance commitments or guarantees. The contractor cannot guarantee that the functions contained in the service results or deliveries will run uninterrupted and error-free in a combination selected by the client (unless specified in advance by test cases supplied by the client). This assurance cannot be guaranteed if there are changes to the system environment. The guarantee for defects due to hardware or operating system errors is excluded.
Defective deliveries or services are to be made in writing by the client within 14 days of becoming aware of them, or within 14 days of the point in time at which it should have become aware with due diligence, or within 14 days of the program acceptance (if this was specified in the offer) to reprimand. Complaints about defects are only valid if they concern reproducible defects. The contractor is entitled to re-examine alleged defects at any time, otherwise any warranty claims of the client expire. The client bears the appraisal costs if the complaint is wrongly made.
In the case of justified warranty claims, the contractor undertakes, at his option, to remedy defects in the services or deliveries either through improvement or replacement within a reasonable period of time. If two attempts at improvement or replacements fail, the client can withdraw from the contract, except in the case of insignificant defects.
Without prejudice to the above-mentioned deadlines, the warranty claims expire one year after the service or delivery or acceptance (if this is specified in the offer).
The statutory presumption of defects in § 924 ABGB is excluded. Proof of the existence of a defect at the time of delivery or provision of the service or acceptance is therefore incumbent on the client. Liability of the contractor for consequential damage caused by a defect from the title of compensation is excluded. Costs for assistance, misdiagnosis as well as error and malfunction elimination for which the client is responsible as well as other corrections, changes and additions are carried out by the contractor for a fee.
The contractor assumes no liability for errors, malfunctions or damage resulting from changes to the delivery or the services by the client itself or by third parties, improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as these are prescribed , abnormal operating conditions (especially deviations from the installation and storage conditions) as well as damage in transit and the like.
Insofar as the subject of the order is the change or addition to existing programs, the warranty relates to the change or addition. The guarantee for the original program is not revived.
The warranty claims specified here are final.
Notices of defects, warranty checks and the implementation of the warranty do not interrupt the warranty and limitation periods.
The client is not entitled to withhold payments due to the contractor due to any warranty claims.
The contractor is liable for direct damage caused in the course of the performance of the contract, provided that the contractor or the vicarious agent working for the contractor is proven to have acted with intent or gross negligence; this does not apply to personal injury. In any case, the burden of proof lies with the client. Any further liability, such as liability for indirect damage, consequential damage, incidental and consequential damage including loss of profit, loss of sales and interest, legal costs as well as for damage resulting from loss of data or data use, are excluded.
12. Delivery and transport damage
If the same order contains deliveries with different availability, shipping will only take place when all deliveries in the order are available, unless otherwise expressly agreed in writing. However, the contractor reserves the right to make partial deliveries.
The delivery takes place without exception ex warehouse of the company grommunio or ex works of the manufacturer to the delivery address communicated by the client. The risk is transferred to the client as soon as the delivery has been made available on the factory premises, even if carriage paid delivery has been agreed. grommunio is free to choose a suitable carrier for delivery.
Specified delivery dates are non-binding information.
If the collection or dispatch of a delivery ready for dispatch or its dispatch is not possible through no fault of the contractor or the hardware manufacturer, the contractor or the hardware manufacturer is entitled to store the delivery at the cost of the client at its own discretion, whereby the delivery is deemed to have been made. The client bears the costs for the unsuccessful delivery attempt. This does not change the agreed terms of payment.
If a delivery has been agreed and the client refuses to accept a shipment, the client will be charged with the entire costs incurred, such as shipping charges, cash on delivery charges, return shipping charges and a processing fee.
Program carriers, documentation and service descriptions are dispatched at the expense and risk of the client.
Insurance only takes place at the express request of the client.
The contractual partners commit themselves to mutual loyalty. You will refrain from soliciting and employing employees who have worked on the implementation of the contracts of the other contracting party for the duration of the contract and 12 months after the contract has ended. The contractual partner who violates this is obliged to pay lump-sum compensation in the amount of an employee’s annual salary.
14. Data protection and confidentiality
In accordance with the provisions of the Data Protection Act, the contractor guarantees to observe the obligation to observe data secrecy and obliges its employees to comply with it.
The client grants its consent that personal data can be stored and processed automatically in order to fulfill the contractual relationship.
The contracting parties undertake to maintain confidentiality on all matters that become known in connection with the performance of the contract and to transfer the confidentiality obligation to their employees and vicarious agents.
The duty to maintain business and trade secrets also applies for an unlimited period after the end of the business relationship.
Exceptions are cases in which there is a legal obligation to provide information.
The place of performance for all business is – unless otherwise expressly agreed – the place of business of the contractor.
Should individual provisions of this contract be or become ineffective, this shall not affect the rest of the content of this contract. The contractual partners will work together in partnership to find a regulation that comes as close as possible to the ineffective provisions.
The client grants the contractor the right to use the contractor as a reference, provided that this does not contradict.
16. Final provisions
For all disputes resulting from or in connection with the contracts concluded between the client and the contractor, Austrian law shall apply as agreed, excluding reference norms and the UN sales law.
For any disputes, only the Vienna Commercial Court is deemed to have been agreed.
The client cannot derive any waiver of claims from an act or omission by / by the contractor unless the contractor expressly declares such a waiver.
Important notifications are made in writing, by fax or by e-mail and must be addressed to the contact person named in the contractor’s offer. Notifications by the client that are aimed at notices of defects, the setting of a grace period as a result of delay, the amendment or termination of the contractual relationship concluded with the contractor, shall only become legally effective if the client has signed a company signature.