General Terms and Conditions of tecConsult GmbH
1.1 These General Terms and Conditions (“Terms and Conditions”) apply to all contracts of tecConsult GmbH (“tecConsult” for short), unless otherwise agreed in writing.
1.2 A contract is understood as any commissioning by the customer for the provision of services (confirmed offer, order, order, service agreement).
1.3 Any purchase or terms and conditions of the client are hereby expressly contradicted, they are not part of the contract, unless tecConsult agrees to their validity explicitly and in writing. All offers made by tecConsult are generally non-binding.
1.4 The terms and conditions also apply to future transactions between the client, even if it should not be referred to again in future contract conclusion. The reciprocal rights and obligations of the clients are exclusively determined by the content of the order accepted by tecConsult and these terms and conditions and any existing terms and conditions and contract contents. Information contained in catalogs, brochures, websites, etc. is only relevant if express reference has been made in the order confirmation.
1.5 Changes to the contract contents during the execution of a contract must always be formulated in writing and must be confirmed in writing by tecConsult in order to be valid.
If tecConsult mediates services / deliveries of third parties at the request of the client, these contracts are concluded without exception between the client and the third party to the respective terms and conditions of the third party.
1.6 Distributors or employees without power of attorney from tecConsult can not or may not make any declarations, make commitments or accept payments for tecConsult.
1.7 Place of acceptance is always the headquarters of tecConsult.
2. Prices and payment
2.1 Unless otherwise agreed, the prices quoted in the offer or order form apply. These prices are exclusive of statutory sales tax.
2.2 The hourly rates offered or agreed apply to services rendered on weekdays from Monday to Friday from 8:00 to 18:00. On the basis of an explicit request of the client outside this time hours will be charged with a surcharge of 50%.
2.3 For business trips requested by the client (this includes the journey to the client), the actual travel costs incurred (eg overnight stay, official mileage allowance) and the maximum tax-free official daily rates for diets will be charged. Travel times are charged at the respective half hourly rate. For the sake of simplicity, tecConsult can also unilaterally charge an arrival and departure flat rate without an explicit agreement, if this is lower than the calculation with the above model.
2.4 Unless otherwise agreed, payments are due upon receipt of invoice without deductions. The settlement dates result from the order or order.
2.5 tecConsult is entitled in case of default of payment to charge all necessary costs for appropriate legal action as well as default interest in the statutory amount from the day of the delay.
2.6 The offset against outstanding claims against tecConsult and the withholding of payments due to alleged but not recognized by tecConsult claims of the client is excluded.
2.7 Rights of the client to refuse his contractual services in accordance with § 1052 ABGB to obtain or secure the consideration, as well as his statutory rights of retention are excluded.
2.8 Objections to claims invoiced by tecConsult must be made by the client in writing within 3 weeks, otherwise the claim shall be deemed accepted.
2.9 The client agrees that tecConsult can also transmit invoices electronically.
3. Obligations of cooperation of the client
3.1 The client is obliged to support tecConsult and to ensure all conditions necessary for the orderly execution of the order, e. G. to create the necessary operating and operating conditions for hardware and software.
3.2 The client will provide the information necessary for the fulfillment of the contract.
3.3 The client must provide a communication standard that is appropriate to the state of the art, in particular suitable hardware and software, and enable tecConsult to remotely access the systems or applications to fulfill the contract.
3.4 The client shall also ensure that expert personnel are available to support TecConsult.
3.5 If special safety requirements apply in the operation of the client, the client shall inform tecConsult of these before the conclusion of the contract.
3.6 Furthermore, the client undertakes to comply with all relevant laws (in particular the Pornography and Prohibition Act, the StGB, the DSG 2000, the TKG 2003, the Media and Copyright Act and the Unfair Competition Act) as well as the EU General Data Protection Regulation everyone to take sole responsibility for their compliance.
4.1 tecConsult will comply with the provisions of the Austrian Data Protection Act (DSG 2000) or the EU General Data Protection Regulation in the context of the commission.
4.2 The personal data provided by the customer are used or processed exclusively within the framework of the fulfillment of the contracts with the client. tecConsult will take appropriate technical and organizational measures to ensure the security and confidentiality of the client’s personal data.
4.3 Should a third party unlawfully succeed in bringing data stored at tecConsult into its power of disposition or continue to use it, tecConsult shall be liable to the client only in case of intent or gross negligence.
4.4 The client agrees to receive from tecConsult advertising and information concerning products and services of tecConsult to a reasonable extent by e-mail. The data of the client including his name and e-mail address remain exclusively with tecConsult. The client can revoke this declaration of consent in writing at any time.
4.5 The two contracting parties agree to keep confidential details of the concluded contracts as well as of confidential information concerning technical, business and operational matters unconditionally and indefinitely (ie also after termination of the respectively concluded contracts) towards third parties, unless they are general or the recipient otherwise are lawfully known or given to the recipient by a third party without a secrecy obligation, or have been evidently developed independently by the recipient.
5. Delivery of Third Party Software
5.1 If third-party licensed software is used, the client is obligated to inspect the license terms and comply with them carefully before using this software.
5.2 For software that was not created by tecConsult, no liability is assumed.
5.3 The client must refrain from any transfer of the software to third parties, including their short-term release.
5.4 In any case, the client shall indemnify and hold tecConsult harmless from claims for breach of the above obligations.
6. Delivery and creation of software
6.1 In the case of software developed individually by tecConsult, the scope of service is determined by a service description (system analysis) countersigned by both contractual parties. The delivery includes the program code executable on the designated systems and a program description.
6.2 The rights to the programs and the documentation remain wholly with tecConsult, unless otherwise expressly agreed.
6.3 tecConsult does not warrant that the delivered software complies with all requirements of the client, unless this has been explicitly stated in the contract; cooperates with other programs of the client; Furthermore, that the programs run continuously and without errors or that all software errors can be corrected.
6.4 The warranty is limited to reproducible (continuously reproducible) deficiencies in the program function.
6.5 If hardware and software are delivered by tecConsult at the same time, any defects in the software shall not entitle the client to withdraw, including with respect to the contract, the use or delivery of the hardware. The same applies to agreed services. All this does not apply if indivisible services within the meaning of § 918 Abs. 2 ABGB (Civil Code) exist.
7. Delivery of merchandise
7.1 Delivered goods are the sole property of tecConsult until full payment.
7.2 If the client withdraws from the contract for reasons that are not the responsibility of tecConsult, compensation shall be deemed to have been incurred in the amount of the expenses incurred by tecConsult, but at least equal to 20% of the agreed net compensation. TecConsult shall not affect the right to assert exceeding compensation.
7.3 The agreed prices apply, unless otherwise agreed, ex tecConsult’s warehouse, excluding packaging and loading. If duties are levied in connection with the delivery, the customer bears these. If the delivery is agreed with delivery, this will be charged extra, as well as a transport insurance requested by tecConsult.
8. Warranty and liability
8.1 Unless otherwise agreed, the statutory warranty period applies. Warranty-related defects are remedied at the discretion of tecConsult either by repair or replacement. Conversion or price reduction are excluded by mutual agreement.
8.2 The warranty expires if repairs or changes have been made by third parties. Warranty claims assume that the client has reported the defects that have occurred without delay in writing and in detail.
8.3 In the case of delivery of goods, tecConsult is entitled to release itself from warranty claims for cancellation of the contract or for reasonable price reduction by replacing a defective item with a defect-free item within a reasonable period of time.
8.4 Excluded from the warranty are defects resulting from arrangement and assembly not effected by tecConsult (this does not apply if the self-assembly was agreed by the customer or third parties and was carried out expertly or in the case of permissible and expertly carried out replacement actions by the client or third parties, because tecConsult has not complied within a reasonable time despite the indication of the lack of improvement), insufficient equipment, non-observance of installation requirements and conditions of use, overuse of the performance stated by tecConsult, incorrect handling and use of unsuitable operating materials; this also applies to defects attributable to material ordered by the customer. tecConsult can not be held responsible for damages resulting from atmospheric discharges, overvoltages and chemical influences. The warranty does not cover the replacement of parts that are subject to natural wear.
8.5 The liability of tecConsult for slight negligence as well as consequential damage and loss of profit is generally excluded. tecConsult is liable for any damage or consequential loss that may arise as a result of its activity, up to a maximum of the amount covered by the liability insurance of tecConsult.
8.6 Elements provided by the client, such as logos, texts, elements of the client’s corporate design, etc. remain the property of the client; tecConsult does not acquire any rights whatsoever. The client warrants that he / she has all necessary rights and shall indemnify and hold tecConsult harmless from all consequences of any infringements (eg infringement of the copyright of third parties) concerning elements provided by the client.
8.7 tecConsult is not obliged to check provided elements, in particular contents of the client, for their conformity with legal regulations, but can refuse the distribution of these contents in case of suspected injury.
8.8 The client acknowledges that the use of the internet is associated with uncertainties and there are no IT security solutions that provide 100% security. tecConsult assumes no liability for this. Damage and expenses incurred as a result shall be borne by the client.
9. Cloud and hosting services provided by third parties
9.1 Point 9 defines the basics for the use of cloud and hosting services of third parties (service providers) commissioned and provided by tecConsult for the client, i.a. also the use of Microsoft Cloud products offered through the CSP program (Cloud Solution Provider Program).
9.2 Decisive for the scope of services are the service descriptions and service level agreements (SLAs) of the service provider for the respective product. tecConsult only provides the client with the opportunity to use cloud services and products via the respective service provider. The choice of suitable cloud services is solely the responsibility of the customer. tecConsult supports the client in an advisory capacity. A condition for the use of the cloud services is that the client accepts these conditions as well as the conditions of the service provider or, if available, the end customer contract for the respective service or product. The conditions or the end customer contract of the respective service provider will be made available to the client by tecConsult. The client confirms that he has read the terms and conditions of the service provider and that he has understood and accepted all rights and obligations contained therein. End customer contracts of the service provider are in the individual case separately from the client to sign. An order / commissioning of the cloud services with the respective service provider can only take place if these GTC have been accepted and, if available, the signed end customer contract of the service provider of the present.
9.3 The remuneration of services brokered or provided by tecConsult is governed by the contractual agreements, otherwise according to the current price list. tecConsult is entitled to change the price list underlying its services. tecConsult will inform the client in writing about changes in the price list at least four weeks before the changes take effect. If the client does not agree with the change of the price list, he can terminate the commissioned services extraordinarily at the time of the intended entry into force of the change of the price list, if the price increase exceeds 10%. Termination requires written form. If the client does not cancel at the time the price change takes effect, the price change shall be deemed approved by him.
9.4 The billing of services / services is monthly, unless otherwise agreed in the individual contract. The client has to raise objections against the settlement within 7 days in writing to the person indicated on the invoice. After expiry of the aforementioned period, the settlement is deemed to have been approved by the client.
9.5 Especially for Microsoft CSP products: The number of users can be adjusted monthly. If the client requests the change request to tecConsult by the 20th day of the month in writing or by email, the change will be valid for the following month. If no change request is sent by the client, the purchase of the products will be extended by one month in the amount of the previous month and will be invoiced accordingly.
9.6 If the service provider changes its pricing or billing modalities for the purchased cloud service, tecConsult has the right, after prior notification, to adapt these accordingly to the client. The rights and obligations of the client resulting from the change are to be taken from the conditions of the respective service provider.
9.7 The provision of the cloud services is bound to ensure that the client meets his payment obligations on time. If the customer defaults on payment of a significant portion of the remuneration owed for two consecutive months, tecConsult reserves the right to suspend or suspend the provision of the services of the service provider after prior warning.
9.8 The client is responsible for the preparation of the data backups, unless it was expressly commissioned with or is included in the commissioned service of the service provider. The client will migrate or migrate his data from the respective cloud platform before expiry of the commissioned service. The customer is aware that the service provider, depending on the agreement, has the right to delete the data after expiration of the cloud service.
9.9 The client will not file any unlawful content that infringes the laws, regulatory requirements or rights of third parties on the space provided and other cloud services commissioned. The client shall also ensure that programs, scripts or similar installed by him do not jeopardize the operation of the service provider’s infrastructure or communication network or the security and integrity of other data stored on the service provider’s servers. The client exempts tecConsult and the service provider from any third-party claims for which he is responsible, including the costs incurred as a result of the claim.
9.10 The client has in particular the following obligations:
+ The assigned usage and access authorizations as well as self-defined additional encryption codes are to be protected against access by third parties. They must be changed immediately if they suspect that unauthorized third parties have become aware of them.
+ He is not entitled to intervene or intervene in programs provided by the provider, or to intervene, alter or copy them (except backup copies), either themselves or through third parties.
+ In the case of unfounded failure notifications, the expenses incurred by the supplier as a result of the inspection of their technical equipment must be compensated if there was no disruption of the technical equipment of the supplier and the client could have recognized this in the event of reasonable troubleshooting.
+ He agrees to comply with the license terms of the respective service provider.
+ He is obliged to investigate faults, failures, security problems and
potential breaches of contract with tecConsult and its upstream suppliers.
+ He will not use the services and programs provided for purposes in which a failure or malfunction may result in personal injury, property damage or environmental damage.
+ All users authorized by him are obliged to comply with the provisions listed in this point.
9.11 The client acknowledges that tecConsult relies on the service provider for the provision of cloud services and has no influence on this. The service provider accepts certain obligations in accordance with its service description or the SLA of the service provider. The availability of the respective services, of the respective product, depends on the period specified in the service description or in the SLA of the service provider.
9.12 Especially for Microsoft CSP products, if the client makes an SLA claim for a failure in accordance with the Microsoft SLA, tecConsult verifies that the claim is legitimate. To the extent credits are to be issued thereafter, tecConsult will take due account of such due obligations upon receipt of the appropriate Microsoft credits from tecConsult. The client has a maximum claim to the proportionate average monthly retail price for the period of the loss. The average retail price is determined and determined by Microsoft. The client must assert the claim by the 15th of the following month in which the fault occurred, otherwise no credit will be given.
9.13 The client acknowledges that an internet connection can fail and therefore cloud services can not be used at times. The customer is responsible for his Internet connection.
9.14 Any liability for problems that are caused by networks of third parties is excluded. Force majeure, strikes, restrictions on the services of other network operators or repair and maintenance work may lead to restrictions or interruptions in the provision of Internet-based services.
9.15 The client acknowledges that the service provider is entitled to change products at any time and for any reason. The service provider is entitled to add new features and functions as well as to remove existing features and functions. The client has no right to use previous versions.
9.16 The service provider is entitled to carry out maintenance work and to adapt the hardware and software used to provide the service to current requirements.
9.17 tecConsult and the service provider are entitled to suspend all or part of the cloud services if:
+ tecConsult or the service provider must comply with legal requirements or orders from authorities.
+ tecConsult or the service provider have reasonable cause to believe that the cloud services are used in breach of contract.
+ if the client does not cooperate in investigations of faults, failures, security problems and breaches of contract.
+ if tecConsult or the service provider has reasonable cause to believe that the client or one of its employees acts fraudulently or in a manner that could be harmful to tecConsult or the service provider.
+ if the client requires the operation of the service provider’s systems, e.g. defective programs, scripts or similar impaired or even endangered. If the cause of the fault is clearly identified tecConsult or the service provider has the right to use these programs, scripts or similar. to disable or uninstall.
+ If tecConsult or the service provider has reason to believe that the administration rights of the client are misused.
tecConsult will inform the client immediately about these measures.
9.18 tecConsult reserves the right to withdraw licenses and services or parts thereof in its sole discretion after a corresponding threat, if the client violates the obligations specified in this contract. Likewise, tecConsult is entitled after termination of the services (regardless of the reason) to suspend or terminate the services after expiry of the agreed notice period. Regardless of the reason for the suspension of services, tecConsult shall in principle not be liable to the client for the consequences of suspending the services.
9.19 The client grants the service provider the right to reproduce the contents stored by the client on the servers of the service provider for the purpose of data backup, if agreed.
9.20 In the event that tecConsult or the service provider is exposed to a claim by a fourth party, due to negligence, breach of law or breach of duty by the client, the client shall indemnify tecConsult or the service provider from all claims, legal fees, damages and penalties , This also applies to all claims, legal fees, compensation payments and penalties in connection with inadequate security measures of the customer. The client must indemnify tecConsult, the service provider and the employees of these companies. For this purpose, the client is obliged to terminate or terminate the contract.
9.21 tecConsult assumes no responsibility for public statements made by the service provider. tecConsult does not guarantee that the selected cloud services meet the requirements of the client. tecConsult is not liable for the functionality of the products with each other / each other. tecConsult is under no circumstances liable for the consequences of withdrawing the licenses and services. tecConsult is not liable for damages resulting from the bankruptcy of the service provider. tecConsult does not guarantee that the cloud services can be used uninterrupted. To the extent legally possible, tecConsult disclaims all warranties not expressly stated in this agreement.
9.22 tecConsult and the client undertake to comply with all applicable legal provisions with regard to data protection and privacy. The client agrees that his data for order processing and credit check of tecConsult, if necessary, be passed on to other third parties. The client is responsible for the processing of his personal data. The client checks in his own responsibility whether the use of personal data by him meets data protection requirements. Insofar as laws require that a separate contract for order data processing must be concluded, this contract shall be concluded between the client as the responsible entity and the service provider as the order data processor. As the person responsible for the processing of personal data, it is the client’s responsibility to obtain all necessary approvals and authorizations for the processing of the order data by the persons concerned. As far as it is relevant for the respective service provider, the client agrees that the data of the client can also be transferred to countries outside the EU and stored there. The service provider undertakes to the customer the guarantee for its products, as specified in the terms and conditions of the service provider or in the individual contract between the service provider and the customer. Unless otherwise provided by law, tecConsult does not assume any further guarantees. To the full extent permitted by law, tecConsult excludes all implied warranties and conditions. For damages, which are to be attributed to a violation of the customer from a duty of these terms and conditions, tecConsult is in principle no liability to the client. tecConsult assumes no liability for damage resulting from the interruption of cloud services, unless tecConsult has proven to be responsible for the interruption itself. In the case of a culpable interruption by the respective service provider, the liability clauses are acc. Performance description, SLAs or corresponding individual contractual agreement of the service provider with the client relevant for the respective product. In general, tecConsult is liable for damage or consequential damage at the maximum amount as covered by the liability insurance of tecConsult.
10.1 The client undertakes not to lance, directly or indirectly, tecConsult employees for the duration of a contract concluded with tecConsult and for a further twelve months without the express prior written consent of tecConsult.
10.2 In the event of non-compliance with this provision, the contracting party is obliged to pay a no-fault penalty amounting to EUR 25,000. The assertion of a damage exceeding this contractual penalty remains unaffected.
11.1 Austrian law applies, excluding such legal norms, which refer to the law of other states. The application of the rules of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) is excluded.
11.2 Amendments and supplements to these GTC as well as the order or other parts of the contract must be in writing (the written form requirement is also taken into account by signed fax), verbal collateral agreements do not exist.
11.3 For any disputes arising from the present contract, the jurisdiction of the relevant court for the location of TecConsult in Graz is agreed.
11.4 tecConsult is authorized to transfer its obligations or the entire contract with a debt-discharging effect to a third party.
11.5 Severability clause: The possible ineffectiveness of individual provisions shall not affect the validity of the remaining GTC. The invalid provision shall be replaced by – except in relation to consumers – an effective one, which comes closest to the invalid provision according to its meaning and purpose.
As of December 2017