Terms and conditions

PREAMBLE
NIT offers the following services, among others:

• Consulting, project management & programming
• Integration, support, managed services
• Housing, Hosting & Cloud Services
• Sale and delivery of hardware and software

The parties have contractually agreed that NIT will take over certain services for the customer. A contract is to be understood as any commission for the provision of services (confirmed offer, order, order, service or maintenance contract). Both parties are aware that the smooth functioning of the contractual services desired by the customer not only depends on the parties properly providing the service, but is also influenced by external third parties. Examples include power failures, standard software or hardware that is not error-free, and similar cases. In the light of this common knowledge, NIT agrees with the customer (hereinafter the “contractual partner”) the applicability of the following general terms and conditions (hereinafter “GTC”) as follows:

1. RANKING

1.1 The contractual agreements between NIT and the contractual partner have the following priority:

• individual written changes and/or additions after the conclusion of the contract;
• the contract concluded between NIT and the contractual partner without attachments;
• the appendices attached to the concluded contract;
• the documents to which the concluded contract refers;
• these GTC; such as
• legal regulations

1.2 In the event of discrepancies, the first-named documents always take precedence over the last-named. Gaps are filled by the respective subordinate documents. The same applies to supplements contained in the subordinate documents. For documents of the same level, the more recent document takes precedence over the older document.

2. SUBJECT OF THE CONTRACT, SCOPE AND VALIDITY

2.1 Agreements regarding contractual services by NIT are only legally binding and valid if they are drawn up in the form of a written contract and signed by NIT. Any general terms and conditions of the contractual partner are hereby expressly rejected; these are not part of the contract unless NIT expressly agrees to their validity in writing.

All offers from NIT are generally subject to change and non-binding.

2.2 The General Terms and Conditions of NIT apply to all contractual services that NIT provides itself or through a subcontractor commissioned by it in Austria. NIT provides the contractual partner with contractual services at an agreed location within the Republic of Austria. In doing so, NIT uses one or more specialists (NIT employees or subcontractors) who, based on their knowledge and experience, are suitable for the activities specified in the respective concluded contract.

2.3 Hardware within the meaning of these GTC are data processing systems (processing units including accessories and applications) and their conditions of use. Software within the meaning of these General Terms and Conditions are computer programs that are distributed as standard or individually developed or adapted for the contractual partner within the meaning of Section 40a of the Copyright Act for the use, operation or control of electrotechnical and/or electronic equipment and systems, including the documents provided for this purpose.

2.4 The development of individual organizational concepts and training courses, the system analysis and programming is carried out according to the type and scope of the binding information, documents and tools made available in full by the contractual partner. This also includes practice-oriented test data and test options to a sufficient extent, which the contractual partner makes available in a timely manner, in normal time and at his own expense. If the contractual partner is already working on the system made available for the test in live operation, the responsibility for backing up the real data lies with the contractual partner.

2.5 For the creation of individual programs and individual training courses, the written description of services that NIT has drawn up on the basis of the documents and information provided or those provided by the contractual partner is binding. A service description drawn up by NIT must be checked by the contractual partner for correctness and completeness. If NIT does not receive any objections to this service description from the contractual partner within two weeks, this service description is deemed to have been approved. Requests for changes that occur later will only be implemented if separate dates and prices are agreed.

2.6 Any software or program adaptations that have been created require a program acceptance for the affected program package, which must take place no later than two weeks after delivery by the contractual partner. This program acceptance is confirmed in a log by the contractual partner (check for correctness and completeness based on the approved service description using the test data provided). If the contractual partner allows a period of two weeks to elapse without accepting the program, the software supplied shall be deemed to have been accepted as of the end date of the stated period.

2.7 When ordering standard programs, the contractual partner confirms with the order that they have knowledge of the respective scope of services of the programs ordered. The contractual partner is also obliged to obtain appropriate knowledge of the scope of services before placing the order.

3. CHANGE OF SERVICES / CHANGE REQUEST (CR)

A change request is generally understood to mean a change to a scope of services that has been contractually agreed upon by both parties, or to the given framework conditions. NIT and the contractual partner agree on the following regulations for any necessary service adjustments:

3.1 NIT and the contractual partner must submit their change requests (change request, “CR”) to each other in writing. The CR should be described and formulated as precisely as possible. If necessary from a technical point of view, NIT supports the contractual partner free of charge in formulating the CR. If the creation of a specification sheet is required for this due to the scope, this activity must be remunerated separately to NIT.

3.2 NIT will check every CR from the contractual partner and inform the contractual partner within 10 working days whether the CR is reasonable and feasible for NIT. If NIT denies the feasibility, it must justify this in writing to the contractual partner.

3.3 If the CR is reasonable and practicable, NIT will inform you how and within what time frame NIT intends to implement it. In particular, effects on the scope of services, the contract period and the remuneration are to be presented.

3.4 Compensation for the implementation of the CR is due if checking and implementing the CR causes an effort that is not just slightly above the normal contractually owed service effort of NIT. If this is the case according to NIT, NIT will explain this to the contractual partner in writing and submit an offer with information on the scope of services and the required remuneration. The contractual partner undertakes to place the order in writing within 10 working days or to withdraw the CR.

3.5 Until the implementation of a CR, NIT is obliged to provide the contractual services affected by this according to the previously applicable contractual agreements, unless the contractual partner orders in writing that the previous provision of services should be interrupted.

3.6 NIT is obliged to keep documentation about the CR and its implementation. This documentation must contain at least the following elements:

date of CR;
content of the CR;
Date of completed implementation of the CR; such as
Signature of all contracting parties

3.7 This documentation is included as a new appendix to the contract concluded in each case.

4. DATA MIGRATION

4.1 If a data migration is used and this is contractually owed as a service, NIT will import the productive data (real data) available from the contractual partner into the new system after the system installation has been completed.

4.2 NIT is not responsible for the correctness and completeness of the data to be transmitted.

4.3 The contractual partner is responsible for ensuring that his real data is adequately and suitably backed up so that it can be restored at any time before the start of the migration (possibly also several times during the migration process).

4.4 The contractual partner provides NIT with its real data in a format suitable for the transfer, which NIT informs the contractual partner in advance. If adjustments to the existing database are required for the transfer of the real data (field descriptions, mapping, etc.), the contractual partner will make these. If NIT is to take over these tasks, a separate commissionable order is required.

4.5 NIT will inform the contractual partner of the start of the migration process and point out the need for data backup.

4.6 The contractual partner expressly assures and guarantees that the rights of third parties will not be infringed upon by the migration. In the event of an infringement of the rights of third parties, the contractual partner will indemnify and hold NIT completely harmless.

5. COOPERATION OBLIGATION OF THE CONTRACTUAL PARTNER

5.1 The contractual partner is aware that the quality of the services to be provided by NIT depends to a large extent on its cooperation. In this regard, the contractual partner undertakes to provide NIT with all information, documents, processes and circumstances required for the project. In this context, the contractual partner is obliged to disclose all circumstances that could be relevant for proper contractual performance. This includes, in particular, circumstances that are thematically located in the contractual partner’s industry and are not immediately apparent to NIT, which is why NIT cannot and does not have to make any inquiries in this regard.

5.2 In addition, the contractual partner’s obligation to provide information also applies to circumstances that only become known to the contractual partner during NIT’ work. NIT assumes that the information provided by the contractual partner is correct and complete and therefore cannot be checked by NIT. At the request of NIT, the contractual partner must confirm in writing the correctness and completeness of the documents, information and verbal declarations it has submitted.

5.3 In particular, the contractual partner will also immediately inform NIT in writing of all software-specific changes that could affect a part of the contract and that he or she has made himself or through third parties (“in-house developments”). If NIT incurs additional support costs due to in-house developments, the contractual partner shall bear the resulting costs in accordance with the agreed valid price list.

5.4. The contractual partner must also inform NIT immediately of any disruptions, errors or dangers in their own system, such as the compromise of data or malware (malicious programs) and document them in a comprehensible manner in order to prevent a possible risk for the overall operation of the services on the part of NIT. Any documents required for troubleshooting must be made available to NIT for inspection. The contractual partner is also obliged to comply with NIT’s requests, if necessary, in order to minimize further damage. At the request of NIT, the contractual partner will use the NIT service portal for fault reports.

5.5 In addition to the aforementioned obligations, the contractual partner is also obliged to support NIT in the provision of services to the best of its knowledge and belief and to create all the prerequisites necessary for the proper provision of services. The contractual partner provides NIT with all employees required for the fulfillment of the contractual services free of charge and on time. Furthermore, the contractual partner will provide all correct and binding documents, data, access and information required for the contractual service free of charge and on time, and the necessary technical facilities will be set up.

5.6 If contractual services are provided on the premises of the contractual partner or its customers, the employees of NIT are provided with sufficient workplaces and work equipment. The contractual partner also ensures that NIT or its employees have unhindered access during the performance of the service and that appropriate health and safety precautions are taken for the employees of NIT; in particular, the contractual partner must comply with the applicable statutory employee protection regulations.

5.7 The contractual partner follows the instructions given by NIT regarding the description, limitation, detection and reporting of errors. If necessary, the contractual partner will use checklists from NIT.

5.8 NIT is entitled to provide the contractual service via remote maintenance. The contractual partner must provide a communication standard appropriate to the state of the art, in particular suitable hardware and software, and enable NIT to access the applications to fulfill the contractual service.

5.9 The contractual partner must protect all of the licensor’s rights (such as industrial property rights, copyright including the right to a copyright notice) to the software and the licensor’s claims to non-disclosure of trade and business secrets, including through his employees and vicarious agents or third parties; this also applies if the software has been modified or linked to other programs. This obligation remains in effect even after the contract has ended. It is the sole responsibility of the contractual partner to obtain knowledge of the content of the corresponding software license conditions of the respective manufacturer (licensor). In any case, the contractual partner submits to these license conditions by the fact that he or persons commissioned by him carry out or have carried out any action which the respective software manufacturer has determined as a declaration of consent. At the express request of the contractual partner, NIT provides the corresponding license conditions in advance.

5.10 The contractual partner ensures that the hardware and software is operated under the intended operating conditions in accordance with the respective documentation. Furthermore, the contractual partner undertakes to observe all relevant laws (in particular the pornography and prohibition law, the penal code, the DSG 2000, the TKG 2003, the media and copyright law and the law against unfair competition) and to assume sole responsibility for the to assume compliance with the same.

5.11 All services to be provided by the contractual partner must also be provided in the event of a defect being remedied.

5.12 Compliance with the range of services on the part of NIT requires the complete and timely fulfillment of all cooperation and other contractual obligations on the part of the contractual partner, which the contractual partner expressly acknowledges.

5.13 In the event of a violation of the obligations to cooperate provided for in these GTC, the contractual partner must bear all associated costs and is also liable for the resulting damage. NIT is also entitled to withdraw from the respective contract with immediate effect in the event of a breach of the obligation to cooperate.

6. TERMS OF PAYMENT

6.1 Payments are always credited to the oldest open claim.

6.2 The prices or remuneration to be paid by the contractual partner are in EURO and plus the statutory sales tax.

6.3 NIT will invoice the remuneration upon delivery and acceptance of the respective contractual services, whereby the contractual partner undertakes to accept them immediately after completion. In the case of orders that include several units (e.g. programs, services and/or training courses, implementation in partial steps), NIT is entitled to issue an invoice after the delivery of each individual unit or partial service. The smallest billing unit is 30 minutes.

6.4 The following applies to other additional services: If the other service provision extends over a period of more than 4 weeks, NIT is entitled to issue partial invoices according to the progress of the service. These usually take place monthly in arrears.

6.5 The invoices issued by NIT plus sales tax are due for payment promptly from the invoice date without deduction and free of charges. Advance payments already made will be deducted.

6.6 Invoices that are not yet due and payment facilities that have been granted, such as bills of exchange or checks that have been accepted as payment, become due immediately, regardless of the respective term, if a significant deterioration in the financial situation of the contractual partner becomes known.

6.7 Compliance with the agreed payment dates is an essential condition for the further execution of the delivery or the fulfillment of the contract by NIT. In the event of a delay in payment, including partial invoices and payments on account, NIT is entitled, after a one-time reminder and setting a grace period, to stop the ongoing work and withdraw from the contract. In the case of partial payments, NIT is also entitled to claim a missed deadline and to make the entire outstanding invoice amount due.

6.8 If the contractual partner is in default of payment, default interest of 8% pa above the base interest rate will be charged. In addition, in the event of a delay in payment, the contractual partner is obliged to reimburse the dunning and collection fees incurred as well as all other ancillary costs associated with the delay in payment.

6.9 In the event that the customer defaults on payment after several reminders, NIT is entitled to immediately deactivate the customer’s website and its services. To resume the blocked services, the customer accepts a reactivation fee of EUR 30.00. This lump sum corresponds to the costs to be expected in the normal course of events.

6.10 Other deliveries / services required for the provision of the contractual service (e.g. equipment, software licenses, data lines, on-call duty) and any contractual fees will be invoiced separately. The costs of program carriers (magnetic tapes, magnetic disks, floppy disks, streamers, tapes, magnetic tape cassettes, etc.) and any contract fees will also be invoiced separately.

6.11 In the case of standard programs, the list prices valid on the day of delivery shall apply unless these have been specified in any order confirmation. Order extensions are charged for all other services according to the workload at the rates valid on the day the service is rendered. Deviations from the time expenditure on which the contract price is based will be taken into account accordingly by the contractual partners.

6.12 The costs for travel, daily and overnight allowances will be invoiced separately to the contractual partner according to the currently applicable rates. Travel times count as working time.

6.13 Premature termination of contract: If the contractual partner is in default of payment, NIT is entitled to terminate the contract with immediate effect after an unsuccessful written or electronic reminder, setting a grace period of two weeks and threatening to terminate the contract prematurely. A premature termination of the contract attributable to the sphere of the contractual partner does not affect NIT’ claim to payment of the fee for the agreed term of the contract up to the next possible termination date or NIT’ right to assert claims for damages. In the event of termination of the contractual relationship – for whatever reason – NIT is no longer obliged to provide the agreed services. NIT is therefore responsible for deleting the saved or managed data. The timely storage and backup of the data is the sole responsibility of the contractual partner. Regular backups are also subject to the contractual partner’s duty of care. In the event of justified deletion, the contractual partner is not entitled to any claims against NIT.

7. SET-OFF

7.1 The contractual partner may only offset claims that are undisputed by NIT or recognized in writing or legally established.

7.2 Any retention of contractual services by the contractual partner is excluded. In particular, the contractual partner is not entitled to withhold payments to NIT due to contractual services not being rendered in full or due to any guarantee, warranty or damage claims.

8. RIGHTS TO DEVELOPMENTS / COPYRIGHT

8.1 The contractual partner assures that he has all copyrights and/or other rights regarding the works made available to NIT for the execution of the contractual service and that NIT does not infringe any third-party copyrights and/or other rights.

8.2 The contractual partner may only use the results of the contractual services provided for its own purposes after payment, whereby the use of the results for companies in which the contractual partner is significantly involved requires a separate written agreement between the contractual partner and NIT. Otherwise, all rights of use in all types of use remain with NIT.

8.3 The contractual partner is not entitled, without the written consent of NIT, to pass on organizational elaborations, training concepts and training documents, programs or program concepts, offers, service descriptions, etc. or copies derived therefrom to third parties, whether for a fee or free of charge. Specially created programs and organizational services represent the exclusive intellectual property of NIT. Irrespective of this, the right to use the same applies – even after payment – exclusively for the contractual partner’s own purposes and only for the hardware specified in the respective concluded contract. Any passing on, regardless of the legal form, but also any short-term transfer for the production of reproductions, entails claims for damages,

8.4 In the case of sold software, the contractual partner receives the non-transferrable and non-exclusive right to use the sold software in compliance with the contractual specification at the agreed installation site. In the case of supplied hardware, this right is limited exclusively to the use of this hardware, in the case of independent software, exclusively to the hardware defined in the contract according to type, number and installation location. All other rights to the software are reserved by the licensor. Without his written consent, the contractual partner is not entitled, without prejudice to the provisions of Section 40d of the Copyright Act, to copy the software, to change it, to make it accessible to third parties or to use it on hardware other than the contractual hardware. Insofar as the intended use is to include the simultaneous use at more than one workplace, this requires an express agreement. The use of software on non-contractual hardware may only take place on the basis of a separate, written agreement against payment.

8.5 The contractual partner agrees that the programs commissioned by him will be included in the NIT program library for general use by the NIT sales organization to compensate for the fact that his programs could be developed significantly more economically and cost-effectively through the use of other experiences and documents than would have been the case without the use of such aids.

9. RETENTION OF TITLE

9.1 The contractual partner only acquires ownership of the products and other items delivered by NIT as well as all other rights once the agreed price has been paid in full. Prior to this, the contractual partner has a provisional, purely contractual right of use.

9.2 The contractual partner is not entitled to pledge reserved goods or to assign them as security. In the event of a delay in payment, imminent suspension of payments or in the event of enforcement against the contractual partner, NIT is entitled to dismantle and/or otherwise take back the reserved goods without this being equivalent to a withdrawal from the contract. The contractual partner is obliged to surrender.

9.3 In the event of seizure or other claims on the goods subject to retention of title by third parties, the contractual partner is obliged to point out NIT’s right of ownership and to inform NIT immediately. The contractual partner is responsible for all costs and damage incurred by NIT as a result of such access by third parties.

10. COMPENSATION, INDEX PRICE ADJUSTMENT

10.1 Unless otherwise agreed, the amount of the remuneration or the price for the commissioned services results from the contract concluded with the contractual partner together with the appendices.

10.2 The respective remuneration or the price of NIT must be adjusted in the event of an extension or other change to the concluded contract. Cost increases (e.g. wage and ancillary wage costs, material costs, procurement costs, telephone costs and charges, travel and travel expenses, expenses) can be passed on to the contractual partner to an extent corresponding to the increase. The contractual partner must be informed promptly about the causes. Should the legal basis for import duties or similar change between the conclusion of the contract and the provision of the contractual service, NIT is also entitled to adjust the prices or remuneration by the corresponding amount.

10.3 Index price adjustment: An annual value assurance is agreed for the prices or remuneration contractually agreed with the contractual partner. The 2010 consumer price index published monthly by Statistics Austria, or the index replacing it ex officio, serves as a measure of value retention. The value adjustment-related price adjustment always takes place on 01.01. every calendar year and will take effect automatically. For contracts that were concluded in the last quarter of a year (between October 1st and December 31st), the adjustment takes place on January 1st. of the year after next (example: contract concluded on October 1, 2012; next index adjustment is therefore on January 1, 2014). The index number published for the first day of the year serves as a reference for the adjustments. All rates of change are calculated to one rounded decimal place. Evidence of the increase through indexing is provided by NIT. A price adjustment not made by NIT for whatever reason does not mean that NIT has waived the right to make an adjustment. In any case, the prices or remuneration may not fall below the prices agreed in the contracts and appendices.

11. CONTACTS

11.1 NIT and the contractual partner provide the required number of competent and decision-making contact persons for the entire contract period, but at least two, unless otherwise agreed. The contractual partner shall make the decisions necessary for the performance of the service immediately after notification of the need for a decision by NIT.

11.2 The contractual partner shall ensure that the contact persons named by him or the persons authorized by him are authorized to submit binding declarations to NIT.

11.3 The contact persons are to be specifically specified and named in the contracts to be concluded.

12. TIMES OF PERFORMANCE, DELIVERY

12.1 Information on times of delivery and performance are generally non-binding. This only applies if NIT has expressly promised delivery and service times in writing as binding. Fixed dates require an express written agreement.

12.2 Agreed dates are based on an estimate to the best of our knowledge and belief at the time the contract was concluded. If the agreed deadlines are exceeded, the contractual partner must grant NIT a reasonable grace period.

12.3 Delivery or service deadlines are met for the contractual services by NIT from the start of the delivery or service. Shipping is always at the expense and risk of the contractual partner. Insurance is only taken out at the written request and expense of the contractual partner.

12.4 Unless expressly agreed otherwise, NIT shall provide all contractual services during NIT business hours. Working hours are generally Monday to Thursday from 8:30 a.m. to 5:00 p.m. and Friday from 8:00 a.m. to 12:00 p.m. The specific business hours of the individual NIT branches can be found under the following link: www.NIT.eu

12.5 Surcharges may be charged for the provision of services outside NIT business hours. These are to be agreed separately or taken from the price list.

12.6 Any official approvals or third-party approvals required in connection with the delivery or provision of services are to be obtained by the contractual partner. If such approvals are not given in good time, the delivery or service period will be extended accordingly and this cannot lead to a delay on the part of NIT. Objectively justified and appropriate changes to the performance and delivery obligation of NIT, in particular necessary adjustments to an appropriate delivery or Performance deadlines are deemed to have been approved in advance by the contractual partner. NIT is entitled to make partial or advance deliveries. If delivery on call is agreed, the goods are deemed to be called off no later than 1 year after the order was placed.

12.7 If deadlines for the provision of the contractual service by NIT cannot be met due to force majeure, illness, accident or other circumstances for which NIT is not responsible, the delivery or service period is extended accordingly by the duration of these circumstances. In such circumstances, NIT also has the right to withdraw from its delivery or service obligation. The aforementioned circumstances also entitle to an extension of the delivery or service period if they occur at a supplier of NIT. The contractual partner will immediately inform NIT in writing about the aforementioned events, namely within 3 days from the date on which the contractual partner became aware of them and at the latest within 5 days from the beginning or end of such an event.

12.8 Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents made available by the contractual partner or third parties originating from the sphere of the contractual partner are not the responsibility of NIT and cannot lead to a delay on the part of NIT. The resulting additional costs will be invoiced by NIT according to the “Individual order” price list.

13. CONTRACT TERM / TERMINATION

13.1 Contracts with NIT are generally concluded for an indefinite period and come into force on the day of signing, unless a different start of service is contractually regulated.

13.2 Unless otherwise agreed in the concluded contract, the concluded contract can be terminated by NIT and the contractual partner with a notice period of 12 months to the end of each calendar year.

13.3 The right to extraordinary termination remains unaffected. In particular, NIT is entitled to extraordinary termination if the contractual partner is more than two weeks in arrears with payments due from a concluded contract despite a reminder and a grace period of 1 week. In addition, NIT is also entitled to extraordinary termination in the event of a serious breach of essential contractual obligations by the contractual partner, in the event of a significant deterioration in the financial situation of the contractual partner or in the event of any service use by the contractual partner that violates existing legal provisions.

13.4 Any termination must be made in writing.

13.5 NIT and the contractual partner will work together in the event of the termination of a contractual relationship in order to enable the contractual services to be rendered to be properly transferred to the contractual partner or to a third party authorized by the contractual partner (“termination support”). In particular, NIT must hand over all processing results and documents containing data to the contractual partner or keep them on his behalf or destroy them. A separate agreement must be made with regard to the termination support and its remuneration.

14. WARRANTY

14.1 NIT basically guarantees the proper execution of the contractual services and is liable for the fact that the contractual services correspond to those services that were agreed or assumed between the contracting parties. Without an express written promise, NIT does not guarantee that the contractual service is economically or technically usable for the purposes of the contractual partner.

14.2 The contractual services owed by NIT are free of material defects if they correspond to the contractually agreed purpose of use from a practical point of view when provided. A functional impairment of a system resulting from environmental conditions, incorrect operation or the like does not constitute a defect. Otherwise, an insignificant reduction in quality is not taken into account.

14.3 The improvement of defects is carried out at NIT’ discretion by eliminating/eliminating the defect, (subsequent) delivery of a defect-free program or other items or by showing ways in which the defect or the effects of the defect can be avoided. The elimination of defects by NIT can also be carried out by telephone, written or electronic instructions to the contractual partner. The contractual partner will take all necessary measures to investigate or rectify defects or cooperate to the extent necessary.

14.4 A rectification of any defects by the contractual partner himself is excluded.

14.5 An equivalent new program version or the equivalent previous program version that did not contain the defects must be accepted by the contractual partner, unless this is unreasonable for him. The contractual partner must carry out program and data backup work (backup and restore) at his own expense.

14.6 NIT is entitled to make at least two attempts at improvement within a reasonable period of time. The failure of a second attempt at improvement does not necessarily mean the final failure of the improvement. In view of the circumstances of the individual case, the contractual partner and NIT will endeavor to reach an amicable solution with regard to further attempts at improvement.

14.7 In the event that a defect elimination (improvement) ultimately fails, NIT will inform the contractual partner of this and request the latter to determine how to proceed within a reasonable period of time. After the improvement finally fails, the contractual partner has the choice of either reducing the agreed price or the agreed remuneration appropriately or requesting cancellation of the contract (rescission). However, if there is only a minor defect, the contractual partner is limited to the price reduction.

14.8 The contractual partner must check the contractual services performed by NIT for defects and quality immediately after the service has been rendered. The contractual partner must notify NIT in writing of obvious defects within one week. The complaint is to be reported to the NIT service portal and such a complaint may only be made by a competent and authorized person of the contractual partner. If the contractual partner fails to make such a notification of defects, the legal consequences pursuant to § 377 Para. 2 UGB shall apply. With regard to any defects that may appear later, reference is made to the provision of § 377 Para. 3 UGB, whereby a period of 1 week is also agreed here.

14.9 For errors in standard software or software not produced by NIT, the regulations for warranty rights of the corresponding license agreement or the contract for the acquisition of updates for the respective products apply. NIT only guarantees the error-free function of such software in certain combinations and applications if this has been expressly promised in writing. During the warranty period, the contractual partner will receive free supplementary versions (error corrections from the software manufacturer) of the software including the associated documentation on request. This does not include newer versions of the software that contain functional improvements to the licensed software. The installation of supplementary versions is carried out by the contractual partner and is not covered by the warranty.

14.10 The defect rights from the contract concluded in this regard apply to the creation of modules (individually created or adapted software). In this context, NIT will eliminate any errors that occur in the program modules it has created as quickly as possible. If it is not possible to eliminate the error, NIT will develop an acceptable alternative solution.

14.11 Excluded from the warranty are defects that can be traced back to improper operation, modified system components, use of unsuitable organizational means or unusual system interventions by the contractual partner or third parties. Furthermore, NIT assumes no liability for errors, disruptions or damage resulting from the use of unsuitable data carriers, hardware, software, abnormal or unusual operating conditions (in particular deviation from the installation and storage conditions), improper use or conversions by the contractual partner or third parties, atmospheric or static discharge, viruses, natural wear and tear and damage in transit.

14.12 A warranty period of 6 (six) months is agreed between NIT and the contractual partner. The warranty period begins with the delivery of the contractual service and must be asserted in court within this period if it is otherwise statute-barred. In addition, the contractual partner must always provide evidence that the defectiveness of the contractual service provided was already present at the time of handover. In addition, the possibility of recourse to NIT according to § 933b ABGB is excluded.

14.13 If the contractual partner fails to accept the contractual services for a reason other than a non-minor defect that severely restricts the use of the contractual service or makes it impossible, although NIT has declared readiness for acceptance, the contractual service is deemed to have been properly accepted four weeks after the aforementioned declaration. A non-minor defect exists if real operation cannot be started or continued. The assistance and error diagnosis as well as error and fault elimination for which the contractual partner is responsible, as well as other corrections, changes and additions are carried out by NIT for a separate charge. This applies in particular to the elimination of defects if program changes,

14.14 If the subject of the order is the change or addition to existing contractual services by NIT, the warranty only relates to this current subject of the contract. The warranty for the original contractual service is not revived as a result.

14.15 Obvious inaccuracies (spelling errors, calculation errors, formal errors, etc.) in notes, protocols, calculations, etc. can be corrected by NIT at any time. A claim for the elimination of such obvious defects is excluded if they are not asserted in writing to NIT within the warranty period.

15. LIABILITY

15.1 NIT is only liable to the contractual partner for property damage caused by at least gross negligence and only up to the amount of EUR 10,000 per damage event caused by NIT or one of its vicarious agents or legal representatives. However, per year and per contractual relationship, NIT is liable for a maximum of twice the aforementioned amount.

15.2 The liability of NIT or its legal representatives or vicarious agents is unlimited only in the case of personal injury (injury to life, limb or health).

15.3 The liability of NIT for slight negligence, with the exception of personal injury, is excluded.

15.4 In addition, any further liability of NIT for damages is excluded, in particular liability for lost sales, lost profit and lost business opportunities as well as claims for compensation for indirect damage, consequential damage, damage caused by operational disruptions and savings not realized. Liability under the Product Liability Act and any other legally mandatory no-fault liability cases remain unaffected.

15.5 All claims for damages against NIT must be notified in writing by registered mail within 4 weeks of the occurrence of the damaging event, otherwise they will lapse, and they must be asserted in court no later than 6 months after the damaging event, otherwise the claim will become statute-barred.

15.6 The contractual partner undertakes to carry out regular state-of-the-art data backups before and during the work of NIT. In the event of data loss for which NIT is responsible, NIT is only liable for the costs of duplicating the data from the backup copies to be created by the contractual partner and for restoring the data that would have been lost even if the data had been properly backed up.

15.7 If a third party takes legal action against the contractual partner due to a violation of rights by NIT, the contractual partner undertakes to give NIT the opportunity to remedy the violation of rights. This can be done by negotiating with the third party or by delivering a contractual service that does not infringe the rights of the third party.

15.8 The contractual partner is solely liable for the legality of the use of documents handed over to NIT by the contractual partner. NIT is not obliged to check the legality of the use. Should a claim be made against NIT due to the use of such documents by third parties, the contractual partner shall indemnify and hold NIT harmless against the third party.

15.9 All previously regulated limitations of liability also apply in the event of conversion or any other retrospective elimination or cancellation of a contract concluded with NIT.

15.10 Software liability: NIT assumes no liability and does not guarantee that the software supplied by it meets the requirements of the contractual partner, runs without errors or that all software errors can be corrected. When setting up firewall systems, NIT follows the current state of the art, but does not guarantee their absolute security and is not liable for it. Likewise, NIT is not liable for any disadvantages that arise as a result of the firewall systems installed at the contractual partner being circumvented or disabled.

16. SOLICITATION

16.1 The contractual partner undertakes not to poach any employees of NIT directly or indirectly for the duration of a contract concluded with NIT and for a further twelve months without the express prior written consent of NIT. This also applies to the poaching of NIT subcontractors or their employees by the contractual partner.

16.2 In the event of non-compliance with this provision, the contractual partner is obliged to pay a no-fault contractual penalty of EUR 36,000.00. The assertion of a damage exceeding this contractual penalty remains unaffected.

17. PRIVACY / CONFIDENTIALITY
17.1 Both the contractual partner and NIT are obliged to observe the provisions of the Austrian Data Protection Act (DSG 2000) and to oblige their employees or agents to comply with data protection. NIT and the contractual partner agree to the use of the data generated to the required extent in fulfillment of the contracts concluded in each case.

17.2 NIT is granted the right to include the contractual partner in a reference list and to publish a short project description (approx. 1,500 text characters).

17.3 NIT and the contractual partner agree to maintain confidentiality unconditionally and for an indefinite period regarding details of the concluded contracts as well as confidential information regarding technical, business and operational matters. The confidentiality obligation remains in force even after the termination of the respective concluded contracts. The obligation in question exists as long as the confidential item is not otherwise known.

17.4 The contractual partner indemnifies NIT from all claims of third parties with regard to the data provided.

17.5 Insofar as data is transmitted on NIT web servers – in whatever form – the customer shall make backup copies. NIT web servers are backed up regularly. In the event of data loss, the contractual partner is obliged to make the relevant data stocks available again free of charge. NIT does not assume any guarantees for the data on web servers or backups. Regular backups are the duty of care of the contractual partner. NIT does not assume any form of liability or compensation for loss of data. The contractual partner receives a user ID and a password to maintain his virtual host/server. He is obliged to treat this confidentially and is liable for any misuse resulting from unauthorized use of the password.

17.6 The contractual partner is aware that all participants in the transmission path have the possibility of intercepting transmitted data; the contractual partner accepts this risk.

18. RIGHT OF WITHDRAWAL

18.1 In the event that an agreed delivery time/service time of 12 weeks is exceeded due to gross negligence on the part of NIT, the contractual partner is entitled to withdraw from the relevant contract by registered letter, albeit within a reasonable period of grace to be set by the contractual partner, but of at least two weeks, the agreed (partial) service is not provided and the contractual partner is not at fault for this.

18.2 Otherwise, cancellations by the contractual partner are only possible with the written consent of NIT. If NIT agrees to such an amicable contract termination, NIT is entitled to charge a cancellation fee of 40% of the not yet invoiced order value of the overall project in addition to the contractual services rendered and costs incurred. The same regulations apply if the contractual partner takes actions that entitle NIT to withdraw from the contract. Further claims for damages by NIT remain unaffected.

18.3 If it also turns out in the course of the execution of the contract that the execution of the contract is actually or legally impossible, NIT is obliged to notify the contractual partner of this immediately. In this case, each party is entitled to withdraw from the concluded contract. In this case, the costs and expenses incurred for the activity of NIT according to the internal project statement to be submitted are to be reimbursed by the contractual partner, provided that NIT is not grossly at fault for the impossibility that has occurred.

19. ASSIGNMENT AND SUCCESSION

19.1 All rights and obligations from a contractual relationship with the contractual partner may only be transferred, assigned or otherwise passed on in any way with the written consent of NIT.

19.2 Any change in the shareholding structure or the management of the contractual partner as well as a sale of the contractual partner’s company entitles NIT to terminate the contracts concluded for good cause with immediate effect.

20. WRITTEN FORM

20.1 All changes to a contract concluded with NIT must be made in writing and signed by NIT and the contractual partner. This also applies to the waiver of this written form clause.

20.2 All important contractual declarations (e.g. terminations, setting of deadlines) must be made in writing in order to be effective. The written form is maintained by transmission by fax. An e-mail does not meet the written form requirement.

21. JURISDICTION

21.1 The relevant competent court of the contracting NIT office is agreed as the place of jurisdiction (information provided by the support team or, for example, on the order confirmation).

21.2 Austrian law applies exclusively, excluding the reference standards of private international law. Unless modified by the provisions of these General Terms and Conditions, the statutory provisions of Austrian law that apply between registered traders apply, even if the order is carried out abroad. The applicability of the UN Sales Convention is excluded.

22. CONSUMER PROTECTION

22.1 The present General Terms and Conditions apply without restriction to entrepreneurs.

22.2 In the event of a consumer transaction within the meaning of the Consumer Protection Act, the present General Terms and Conditions only apply in accordance with the permissibility of the relevant consumer protection laws.

23. FINAL PROVISIONS

23.1 Should individual provisions of these General Terms and Conditions prove to be invalid or unenforceable, this shall not affect the validity of the remaining provisions of these General Terms and Conditions. In such a case, the invalid or ineffective provision is to be replaced by a new provision that corresponds to the intended purpose and applies from the beginning of the ineffectiveness.

23.2 The respective contractual language is German. The contractual partner agrees that both technical terms and software can be written in English. By subsequently signing and additionally initialing each page of these GTC, the parties confirm that they have negotiated the provisions of these GTC in detail and agreed them as a binding part of the concluded contract.