ParityQC Terms and Conditions
We are very delighted that you have shown interest in our enterprise. Data protection is of a particularly high priority for the management of the Parity Quantum Computing GmbH. The use of the Internet pages of the Parity Quantum Computing GmbH is possible without any indication of personal data; however, if a data subject wants to use special enterprise services via our website, processing of personal data could become necessary. If the processing of personal data is necessary and there is no statutory basis for such processing, we generally obtain consent from the data subject.
The processing of personal data, such as the name, address, e-mail address, or telephone number of a data subject shall always be in line with the General Data Protection Regulation (GDPR), and in accordance with the country-specific data protection regulations applicable to the Parity Quantum Computing GmbH. By means of this data protection declaration, our enterprise would like to inform the general public of the nature, scope, and purpose of the personal data we collect, use and process. Furthermore, data subjects are informed, by means of this data protection declaration, of the rights to which they are entitled.
As the controller, the Parity Quantum Computing GmbH has implemented numerous technical and organizational measures to ensure the most complete protection of personal data processed through this website. However, Internet-based data transmissions may in principle have security gaps, so absolute protection may not be guaranteed. For this reason, every data subject is free to transfer personal data to us via alternative means, e.g. by telephone.
The data protection declaration of the Parity Quantum Computing GmbH is based on the terms used by the European legislator for the adoption of the General Data Protection Regulation (GDPR). Our data protection declaration should be legible and understandable for the general public, as well as our customers and business partners. To ensure this, we would like to first explain the terminology used.
In this data protection declaration, we use, inter alia, the following terms:
a) Personal data
Personal data means any information relating to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
b) Data subject
Data subject is any identified or identifiable natural person, whose personal data is processed by the controller responsible for the processing.
Processing is any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
d) Restriction of processing
Restriction of processing is the marking of stored personal data with the aim of limiting their processing in the future.
Profiling means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.
Pseudonymisation is the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.
g) Controller or controller responsible for the processing
Controller or controller responsible for the processing is the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Processor is a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
Recipient is a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing.
j) Third party
Third party is a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.
Consent of the data subject is any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
2. Name and Address of the controller
Controller for the purposes of the General Data Protection Regulation (GDPR), other data protection laws applicable in Member states of the European Union and other provisions related to data protection is:
Rennweg 1 / Top 314, 6020 Innsbruck, Austria
Phone: +43 660 8456474
The data subject may, at any time, prevent the setting of cookies through our website by means of a corresponding setting of the Internet browser used, and may thus permanently deny the setting of cookies. Furthermore, already set cookies may be deleted at any time via an Internet browser or other software programs. This is possible in all popular Internet browsers. If the data subject deactivates the setting of cookies in the Internet browser used, not all functions of our website may be entirely usable.
4. Collection of general data and information
The website of the Parity Quantum Computing GmbH collects a series of general data and information when a data subject or automated system calls up the website. This general data and information are stored in the server log files. Collected may be (1) the browser types and versions used, (2) the operating system used by the accessing system, (3) the website from which an accessing system reaches our website (so-called referrers), (4) the sub-websites, (5) the date and time of access to the Internet site, (6) an Internet protocol address (IP address), (7) the Internet service provider of the accessing system, and (8) any other similar data and information that may be used in the event of attacks on our information technology systems.
When using these general data and information, the Parity Quantum Computing GmbH does not draw any conclusions about the data subject. Rather, this information is needed to (1) deliver the content of our website correctly, (2) optimize the content of our website as well as its advertisement, (3) ensure the long-term viability of our information technology systems and website technology, and (4) provide law enforcement authorities with the information necessary for criminal prosecution in case of a cyber-attack. Therefore, the Parity Quantum Computing GmbH analyzes anonymously collected data and information statistically, with the aim of increasing the data protection and data security of our enterprise, and to ensure an optimal level of protection for the personal data we process. The anonymous data of the server log files are stored separately from all personal data provided by a data subject.
5. Contact possibility via the website
The website of the Parity Quantum Computing GmbH contains information that enables a quick electronic contact to our enterprise, as well as direct communication with us, which also includes a general address of the so-called electronic mail (e-mail address). If a data subject contacts the controller by e-mail or via a contact form, the personal data transmitted by the data subject are automatically stored. Such personal data transmitted on a voluntary basis by a data subject to the data controller are stored for the purpose of processing or contacting the data subject. There is no transfer of this personal data to third parties.
6. Routine erasure and blocking of personal data
The data controller shall process and store the personal data of the data subject only for the period necessary to achieve the purpose of storage, or as far as this is granted by the European legislator or other legislators in laws or regulations to which the controller is subject to.
If the storage purpose is not applicable, or if a storage period prescribed by the European legislator or another competent legislator expires, the personal data are routinely blocked or erased in accordance with legal requirements.
7. Rights of the data subject
a) Right of confirmation
Each data subject shall have the right granted by the European legislator to obtain from the controller the confirmation as to whether or not personal data concerning him or her are being processed. If a data subject wishes to avail himself of this right of confirmation, he or she may, at any time, contact any employee of the controller.
b) Right of access
Each data subject shall have the right granted by the European legislator to obtain from the controller free information about his or her personal data stored at any time and a copy of this information. Furthermore, the European directives and regulations grant the data subject access to the following information:
- the purposes of the processing;
- the categories of personal data concerned;
- the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
- where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
- the existence of the right to request from the controller rectification or erasure of personal data, or restriction of processing of personal data concerning the data subject, or to object to such processing;
- the existence of the right to lodge a complaint with a supervisory authority;
- where the personal data are not collected from the data subject, any available information as to their source;
- the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and envisaged consequences of such processing for the data subject.
Furthermore, the data subject shall have a right to obtain information as to whether personal data are transferred to a third country or to an international organisation. Where this is the case, the data subject shall have the right to be informed of the appropriate safeguards relating to the transfer.
If a data subject wishes to avail himself of this right of access, he or she may, at any time, contact any employee of the controller.
c) Right to rectification
Each data subject shall have the right granted by the European legislator to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.
If a data subject wishes to exercise this right to rectification, he or she may, at any time, contact any employee of the controller.
d) Right to erasure (Right to be forgotten)
Each data subject shall have the right granted by the European legislator to obtain from the controller the erasure of personal data concerning him or her without undue delay, and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies, as long as the processing is not necessary:
- The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
- The data subject withdraws consent to which the processing is based according to point (a) of Article 6(1) of the GDPR, or point (a) of Article 9(2) of the GDPR, and where there is no other legal ground for the processing.
- The data subject objects to the processing pursuant to Article 21(1) of the GDPR and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2) of the GDPR.
- The personal data have been unlawfully processed.
- The personal data must be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
- The personal data have been collected in relation to the offer of information society services referred to in Article 8(1) of the GDPR.
If one of the aforementioned reasons applies, and a data subject wishes to request the erasure of personal data stored by the Parity Quantum Computing GmbH, he or she may, at any time, contact any employee of the controller. An employee of Parity Quantum Computing GmbH shall promptly ensure that the erasure request is complied with immediately.
Where the controller has made personal data public and is obliged pursuant to Article 17(1) to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform other controllers processing the personal data that the data subject has requested erasure by such controllers of any links to, or copy or replication of, those personal data, as far as processing is not required. An employees of the Parity Quantum Computing GmbH will arrange the necessary measures in individual cases.
e) Right of restriction of processing
Each data subject shall have the right granted by the European legislator to obtain from the controller restriction of processing where one of the following applies:
- The accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data.
- The processing is unlawful and the data subject opposes the erasure of the personal data and requests instead the restriction of their use instead.
- The controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims.
- The data subject has objected to processing pursuant to Article 21(1) of the GDPR pending the verification whether the legitimate grounds of the controller override those of the data subject.
If one of the aforementioned conditions is met, and a data subject wishes to request the restriction of the processing of personal data stored by the Parity Quantum Computing GmbH, he or she may at any time contact any employee of the controller. The employee of the Parity Quantum Computing GmbH will arrange the restriction of the processing.
f) Right to data portability
Each data subject shall have the right granted by the European legislator, to receive the personal data concerning him or her, which was provided to a controller, in a structured, commonly used and machine-readable format. He or she shall have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, as long as the processing is based on consent pursuant to point (a) of Article 6(1) of the GDPR or point (a) of Article 9(2) of the GDPR, or on a contract pursuant to point (b) of Article 6(1) of the GDPR, and the processing is carried out by automated means, as long as the processing is not necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
Furthermore, in exercising his or her right to data portability pursuant to Article 20(1) of the GDPR, the data subject shall have the right to have personal data transmitted directly from one controller to another, where technically feasible and when doing so does not adversely affect the rights and freedoms of others.
In order to assert the right to data portability, the data subject may at any time contact any employee of the Parity Quantum Computing GmbH.
g) Right to object
Each data subject shall have the right granted by the European legislator to object, on grounds relating to his or her particular situation, at any time, to processing of personal data concerning him or her, which is based on point (e) or (f) of Article 6(1) of the GDPR. This also applies to profiling based on these provisions.
The Parity Quantum Computing GmbH shall no longer process the personal data in the event of the objection, unless we can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject, or for the establishment, exercise or defence of legal claims.
If the Parity Quantum Computing GmbH processes personal data for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing. This applies to profiling to the extent that it is related to such direct marketing. If the data subject objects to the Parity Quantum Computing GmbH to the processing for direct marketing purposes, the Parity Quantum Computing GmbH will no longer process the personal data for these purposes.
In addition, the data subject has the right, on grounds relating to his or her particular situation, to object to processing of personal data concerning him or her by the Parity Quantum Computing GmbH for scientific or historical research purposes, or for statistical purposes pursuant to Article 89(1) of the GDPR, unless the processing is necessary for the performance of a task carried out for reasons of public interest.
In order to exercise the right to object, the data subject may contact any employee of the Parity Quantum Computing GmbH. In addition, the data subject is free in the context of the use of information society services, and notwithstanding Directive 2002/58/EC, to use his or her right to object by automated means using technical specifications.
h) Automated individual decision-making, including profiling
Each data subject shall have the right granted by the European legislator not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her, or similarly significantly affects him or her, as long as the decision (1) is not is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) is not authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, or (3) is not based on the data subject’s explicit consent.
If the decision (1) is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) it is based on the data subject’s explicit consent, the Parity Quantum Computing GmbH shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and contest the decision.
If the data subject wishes to exercise the rights concerning automated individual decision-making, he or she may, at any time, contact any employee of the Parity Quantum Computing GmbH.
i) Right to withdraw data protection consent
Each data subject shall have the right granted by the European legislator to withdraw his or her consent to processing of his or her personal data at any time.
If the data subject wishes to exercise the right to withdraw the consent, he or she may, at any time, contact any employee of the Parity Quantum Computing GmbH.
8. Data protection for applications and the application procedures
The data controller shall collect and process the personal data of applicants for the purpose of the processing of the application procedure. The processing may also be carried out electronically. This is the case, in particular, if an applicant submits corresponding application documents by e-mail or by means of a web form on the website to the controller. If the data controller concludes an employment contract with an applicant, the submitted data will be stored for the purpose of processing the employment relationship in compliance with legal requirements. If no employment contract is concluded with the applicant by the controller, the application documents shall be automatically erased two months after notification of the refusal decision, provided that no other legitimate interests of the controller are opposed to the erasure. Other legitimate interest in this relation is, e.g. a burden of proof in a procedure under the General Equal Treatment Act (AGG).
9. Data protection provisions about the application and use of LinkedIn
The controller has integrated components of the LinkedIn Corporation on this website. LinkedIn is a web-based social network that enables users with existing business contacts to connect and to make new business contacts. Over 400 million registered people in more than 200 countries use LinkedIn. Thus, LinkedIn is currently the largest platform for business contacts and one of the most visited websites in the world.
With each call-up to one of the individual pages of this Internet site, which is operated by the controller and on which a LinkedIn component (LinkedIn plug-in) was integrated, the Internet browser on the information technology system of the data subject is automatically prompted to the download of a display of the corresponding LinkedIn component of LinkedIn. Further information about the LinkedIn plug-in may be accessed under https://developer.linkedin.com/plugins. During the course of this technical procedure, LinkedIn gains knowledge of what specific sub-page of our website was visited by the data subject.
If the data subject is logged in at the same time on LinkedIn, LinkedIn detects with every call-up to our website by the data subject—and for the entire duration of their stay on our Internet site—which specific sub-page of our Internet page was visited by the data subject. This information is collected through the LinkedIn component and associated with the respective LinkedIn account of the data subject. If the data subject clicks on one of the LinkedIn buttons integrated on our website, then LinkedIn assigns this information to the personal LinkedIn user account of the data subject and stores the personal data.
LinkedIn receives information via the LinkedIn component that the data subject has visited our website, provided that the data subject is logged in at LinkedIn at the time of the call-up to our website. This occurs regardless of whether the person clicks on the LinkedIn button or not. If such a transmission of information to LinkedIn is not desirable for the data subject, then he or she may prevent this by logging off from their LinkedIn account before a call-up to our website is made.
10. Legal basis for the processing
Art. 6(1) lit. a GDPR serves as the legal basis for processing operations for which we obtain consent for a specific processing purpose. If the processing of personal data is necessary for the performance of a contract to which the data subject is party, as is the case, for example, when processing operations are necessary for the supply of goods or to provide any other service, the processing is based on Article 6(1) lit. b GDPR. The same applies to such processing operations which are necessary for carrying out pre-contractual measures, for example in the case of inquiries concerning our products or services. Is our company subject to a legal obligation by which processing of personal data is required, such as for the fulfillment of tax obligations, the processing is based on Art. 6(1) lit. c GDPR. In rare cases, the processing of personal data may be necessary to protect the vital interests of the data subject or of another natural person. This would be the case, for example, if a visitor were injured in our company and his name, age, health insurance data or other vital information would have to be passed on to a doctor, hospital or other third party. Then the processing would be based on Art. 6(1) lit. d GDPR. Finally, processing operations could be based on Article 6(1) lit. f GDPR. This legal basis is used for processing operations which are not covered by any of the abovementioned legal grounds, if processing is necessary for the purposes of the legitimate interests pursued by our company or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. Such processing operations are particularly permissible because they have been specifically mentioned by the European legislator. He considered that a legitimate interest could be assumed if the data subject is a client of the controller (Recital 47 Sentence 2 GDPR).
11. The legitimate interests pursued by the controller or by a third party
Where the processing of personal data is based on Article 6(1) lit. f GDPR our legitimate interest is to carry out our business in favor of the well-being of all our employees and the shareholders.
12. Period for which the personal data will be stored
The criteria used to determine the period of storage of personal data is the respective statutory retention period. After expiration of that period, the corresponding data is routinely deleted, as long as it is no longer necessary for the fulfillment of the contract or the initiation of a contract.
13. Provision of personal data as statutory or contractual requirement; Requirement necessary to enter into a contract; Obligation of the data subject to provide the personal data; possible consequences of failure to provide such data
We clarify that the provision of personal data is partly required by law (e.g. tax regulations) or can also result from contractual provisions (e.g. information on the contractual partner). Sometimes it may be necessary to conclude a contract that the data subject provides us with personal data, which must subsequently be processed by us. The data subject is, for example, obliged to provide us with personal data when our company signs a contract with him or her. The non-provision of the personal data would have the consequence that the contract with the data subject could not be concluded. Before personal data is provided by the data subject, the data subject must contact any employee. The employee clarifies to the data subject whether the provision of the personal data is required by law or contract or is necessary for the conclusion of the contract, whether there is an obligation to provide the personal data and the consequences of non-provision of the personal data.
14. Existence of automated decision-making
As a responsible company, we do not use automatic decision-making or profiling.
GENERAL TERMS AND CONDITIONS
for the sale and the delivery of organisational and programming services and permissions to use copyrighted software products (B2B) 2018 Version
1. Scope of contract and validity
1.1. All orders and agreements shall only be legally binding insofar as these are signed in writing with the legally binding signature of the company of the Contractor and shall only obligate to the extent stated in the acceptance of order. Purchase conditions of the Client shall herewith be excluded for the respective legal transaction and the entire business relationship. All offers are generally non-binding.
2. Scope and assessment
2.1. The subject matter of an order may be:
- Preparing organisational concepts
- Global and detail analyses
- Compiling individual programmes
- Delivering library (standard-) programmes
- Purchasing usage rights of software products
- Purchasing permissions to use copyrighted products
- Assisting in start-up (restructuring support)
- Telephone consultations
- Programme maintenance
- Compiling programme media
- Miscellaneous services
2.2. Individual organizational concepts and programmes shall be created depending on the nature and volume of binding information, documents and resources provided in full by the Client. These shall include sufficient practical test data and test facilities provided by the Client in due time, during normal working hours and at their own expense. Should the system be provided by the Client for the test work in regular operation, it shall be incumbent upon the Client to secure the regular data.
2.3. The development of individual programmes shall be based on the written performance description chargeably created by the Contractor by means of the documents and information provided to them and/or that the Client provides. The Client shall review this performance description in terms of accuracy and completeness and mark it with a sign of acceptance. Subsequent change requests may lead to separate schedule and price agreements.
2.4. The Client shall accept the respective programme package of individually developed software and/or programme adaptations four weeks after delivery at the latest. The Client shall verify acceptance on record. (Checks for accuracy and completeness by means of the performance description accepted by the Contractor using the test data mentioned in Clause 2.2.). Should the Client let the four-week period pass without acceptation, the delivered software shall be considered as accepted on the end date of the stipulated period. In any case, the software shall be considered as accepted should it be used in real operation by the Client.
Any defects, that is to say deviations from the performance description agreed upon in writing, shall be reported to the Contractor in written form and with sufficient documentation by the Client; the Contractor shall make efforts to quickly rectify the defects. Should substantial defects, which are reported in writing, occur, i.e. real operation cannot be started or continued, new acceptance shall be necessary after rectification of defects.
The Client shall not be entitled to refuse acceptance of software due to unsubstantial defects.
2.5. When ordering library (standard) programmes, the Client shall confirm knowledge of the scope of services of the ordered programmes upon ordering.
2.6. Should it become obvious during the course of work that fulfilment of the order, according to the performance description, is actually or legally impossible, the Contractor shall immediately notify the Client thereof. Should the Client not adapt the performance description accordingly and/or not create conditions that make possible fulfilment, the Contractor may refuse fulfilment. Should the inability of fulfilment be caused by default of the Client or by a retrospective change of the performance description by the Client, the Contractor shall be entitled to withdraw from the contract. The Client shall reimburse the Contractor any costs and expenses incurred for the work of the Contractor so far as well as for possible disassembly costs.
2.7. Delivery of programme media, documentation and performance descriptions shall take place at the cost and risk of the Client. Further training and explanations requested by the Client shall be invoiced separately. Insurances shall only be obtained at the request of the Client.
2.8. We expressly indicate that a barrier-free design, as defined by the Federal Law on Equality of Persons with Disabilities (Federal Disability Discrimination Act — BGStG) is not included in the quote, unless this was separately/individually requested by the Client. Should a barrier-free design not have been agreed upon, it shall be incumbent upon the Client to check the admissibility of the service with regard to the Federal Disability Discrimination Act. Moreover, the Client shall check the content they provide in regard to legal admissibility, particularly in terms of competition, brand, administrative law and copyright. The Contractor shall not be liable to the Client in cases of minor negligence or after fulfilling a possible duty to warn for the legal admissibility of content provided by the Client.
3. Prices, taxes and fees
3.1. All prices shall be calculated in Euros without VAT. These shall only apply for the respective current order. All prices mentioned are quoted from place of business of the Contractor. Expenses for programme media (e.g. CDs, magnetic tape, hard disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as documents and possible contract fees shall be invoiced separately.
3.2. For library (standard) programmes, the list prices valid on the day of delivery shall apply. For all other services (organisational consultation, programming, initial training, adjustment support, telephone consultation, etc.), the work shall be invoiced according to the rates effective on the day of performance. Deviations to the time required as provided by contractual pricing, which is not attributable to the Contractor, shall be invoiced according to actual time required.
3.3. Costs for travel expenses, daily and accommodation allowances shall be separately invoiced to the Client at the respectively valid rates. Travel time shall be considered working hours.
4. Delivery date
4.1. The Contractor shall strive to meet the agreed deadlines of fulfilment (completion) as closely as possible.
4.2. It shall only be possible to meet the intended deadlines of fulfilment provided the Client provides the Contractor with all necessary and complete work and files by the stated deadlines, particularly, the accepted performance description as stipulated in Clause 2.3., and provided the Client meets their obligation of cooperation to the necessary extent.
The Contractor shall not be liable for delivery delays or cost increases caused by incorrect, incomplete or retrospectively changed statements or information and/or documents provided that lead to arrears of the Contractor. The Client shall bear any additional costs incurring therefrom.
4.3. The Contractor shall be entitled to make partial deliveries and/or partial invoices for orders consisting of several units and/or programmes.
5.1. The invoices issued by the Contractor incl. VAT shall be paid within 14 days of receipt of the invoice without deductions and free of charges. In case of partial invoices, the payment conditions agreed upon for the entire order shall apply by analogy.
5.2. The Contractor shall be entitled to issue an invoice upon delivery of each individual unit or service for orders consisting of several units (e.g. programmes and/or training, implementation in steps).
5.3. Compliance with payment deadlines agreed upon shall form a crucial condition for the performance of deliveries and/or contractual fulfilment by the Contractor. Non-compliance with the agreed payments shall entitle the Contractor to stop ongoing work and to withdraw from the contract. The Client shall bear all expenses related to this as well as loss of profit of the Contractor.
In case of payment arrears, the standard base interest rate shall be charged. Should two instalments (in case of partial payments) not be paid, the Contractor shall be entitled to have immediate maturity come into effect and to render any notes payable due for payment.
5.4. The Client shall not be entitled to withhold payments due to incomplete overall deliveries, warranty or guarantee claims or defects.
6. Copyright and usage
6.1. After payment of the remuneration agreed, the Contractor shall grant the Client a non-exclusive, non-transferrable, non-sub-licensable and indefinite right to use the software for the hardware specified in the contract to the extent of the purchased licenses, for the simultaneous usage thereof at several work places and the right to use all work results based on the contract of the Contractor for in-house use. The Contractor shall retain all other rights.
Involvement of the Client in the creation of software shall not entitle them to acquire any rights beyond use of the product as set forth in the Contract. Each infringement of the copyright of the Contractor shall result in claims for damages, in which case full amends are to be made.
6.2. The Client shall be permitted to make copies for archiving and data security purposes subject to the condition that the software contains no express ban of the licensor or a third party, and that all copyright and ownership notices shall be transferred to the copies without alteration.
6.3. Should the disclosure of the interfaces be necessary to produce the interoperability of the software covered by this Contract, the Client shall separately request this from the Contractor for a fee. Should the Contractor not meet this request and decompilation take place according to the Austrian Federal Law on Copyright, the results shall only be used to establish interoperability. Malpractice shall lead to damages.
6.4. Should the Contractor provide the Client with software, whose licensee is a third party (e.g. standard software by Microsoft), the right of usage shall be provided by the license conditions of the licensee (manufacturer).
7. Right of withdrawal
7.1. The Client shall be entitled to withdraw from a respective order by letter sent by registered post, should the agreed delivery deadline not be met due to the sole fault or illegal actions of the Contractor provided that the agreed service is not performed to a considerable extent within an adequate grace period and the Client is not at fault.
7.2. Force majeure, work conflicts, natural disasters and transport bans, as well as other circumstances outside of the influence of the Contractor, shall release the Contractor from their obligation to delivery and/or shall allow them to determine a new delivery deadline.
7.3. It shall only be possible for the Client to cancel an order with written consent of the Contractor. Should the Contractor agree to cancelation of an order, they shall be entitled to charge a cancellation fee to the amount of 30% of the overall project order value not yet invoiced in addition to the services already rendered and costs incurred.
8. Guarantee, maintenance, changes
8.1. The Contractor shall guarantee that the software fulfils the functions according to the respective documentation insofar as the software is used on the operating system stipulated in the contract.
- Prerequisites for error correction shall be that:
- The Client sufficiently describes the error in an error message and that this is definable for the Contractor
- The Client provides the Contractor with all documents necessary for the correction of the error
- The Client or an affiliated third party has not interfered with the software
- The software is used according to the designated conditions of use as stipulated in the documentation
- With regard to guarantee, rectification shall, in any case, prevail over price reduction or redhibitory action. Should a notice of defects be justified, the deficiencies shall be rectified within an adequate period, in which the Client shall enable the Contractor for all measures necessary for examination and rectification.
Section 924 of the Austrian Civil Code ‘Assumption of Deficiency’ shall be excluded.
8.3. The Client shall bear the costs for assistance, incorrect diagnosis, correction of errors and emergency maintenance attributable to the Client as well as other corrections, changes and additions. This shall also apply to rectification of deficiencies, should the Client or a third party make programme changes, additions and other interferences.
8.4. Furthermore, the Contractor shall not be liable for errors, disruptions or damage caused by improper use, changes in components of the operating system, interfaces or parameters, the use of inadequate organisational means or data storage media (as far as these are required), abnormal operating conditions (particularly deviations of installation and storage conditions) or transport damage.
8.5. The Client shall lose any guarantee from the Contractor for programmes that are retrospectively changed by in-house software engineers or third parties.
8.6. Insofar as changing or adding to existing programmes forms the subject matter of an order, the guarantee shall apply to the change or addition. The guarantee for the original programme shall not be renewed by this.
8.7. Guarantee claims shall lapse after six (6) months from transferral.
9.1. The Contractor shall only be liable to the Client for damage the Contractor verifiably causes in cases of gross negligence. This shall also apply mutatis mutandis to damage caused by third parties brought in by the Contractor. In case of bodily injuries caused by the Contractor, the Contractor shall be liable without limitation.
- Liability for indirect damage, e.g. loss of profit, costs related to interruptions, data losses or claims of third parties, shall be expressly excluded.
- Claims for damages shall lapse according to legal provisions, however, at the latest after one year starting from the knowledge of the damage and the person responsible for this.
9.4. Should the Contractor fulfil work with the assistance of a third party and any guarantee and/or liability claims arise against this third party therefrom, the Contractor shall cede those claims to the Client. In such cases, the Client shall focus on this third party.
9.5. Should data backup be expressly agreed upon as a service, liability for the loss of data shall not be excluded, deviating from Clause 9.2, however, restoration of the data shall be limited to a maximum of 10% of the total order sum per case of damage, however, with an overall maximum of EUR 15,000. Further claims for damages and guarantees of the Client than those stipulated in this Contract shall be excluded, regardless of legal basis.
10.1. The contractual partners agree to mutual loyalty. Both shall refrain from headhunting and employing, even via third parties, employees of the respective other contractual partner, who work on the fulfilment of orders, for the term of contract and twelve months after the contract terminates. Any contractual partner infringing this clause shall be obligated to pay lump-sum indemnification to the amount of one annual salary of the employee.
11.1. The Contractor shall obligate their employees to fulfil the provisions stipulated in Section 6 of the Austrian Data Protection Act.
12.1. Should clauses of this Contract be or become invalid, this shall not affect the validity of remaining subject matter of the Contract. The contractual partners shall cooperate in order to find a regulation which comes as close as possible to the intention of the invalid clauses.
13. Final Provisions
13.1. Insofar as nothing else is agreed on, only the legal provisions regarding business-to-business transactions according to Austrian law shall apply, even if the order is implemented abroad. The local jurisdiction of the objectively competent court for the place of business of the Contractor shall be exclusively agreed upon for possible disputes. Pursuant to the Austrian Consumer Protection Law (KSchG), the Terms and Conditions above shall be valid insofar as the Austrian Consumer Protection Law provides no differing obligatory provisions for selling to consumers.
The Austrian Professional Association for Consulting and IT recommends the following mediation clause as a pro-business method of dispute resolution:
In the event that any disputes, which cannot be solved by mutual agreement, arise from this Contract, the parties to the contract agree to engage a listed mediator (Austrian Civil Rights Mediation Law (ZivMediatG) specialized in business mediation from the list of the Austrian Ministry of Justice in order to reconcile these out of court. Should no mutual agreement regarding the selection of the business mediator or with regard to content be possible, legal measures shall be initiated no sooner than one month after the negotiations fail.
In the event that mediation could not be held or was discontinued, any litigation initiated shall be subject to Austrian law.
As agreed, all necessary costs incurred due to previous mediation, particularly for legal advisors consulted, may be claimed in litigation or arbitration as ‘pre-trial costs’.