General Terms and Conditions of the company goingsoft GmbH
General Terms and Conditions - Software
Preamble
The contractor accepts orders, sells, rents, and delivers exclusively on the basis of these General Terms and Conditions. The following conditions apply to all services performed by the contractor or a subcontractor nominated by them under this contract.
Oral agreements to amend or supplement this contract are only effective if confirmed in writing by the contractor.
Offers are generally non-binding.
Delivery
Delivery is made at the expense and risk of the client.
Storage measures and storage costs necessary for reasons within the client's sphere are borne and at the expense of the client.
Announced delivery dates are considered as only approximate estimates unless a fixed transaction has been agreed upon. Force majeure or other unforeseen obstacles within the sphere of the contractor or its subcontractors release the contractor from adhering to the agreed delivery time.
The contract may include, among other things, the conception of software deployment, inventory of the existing software system, creation of a requirement definition for the future software system, implementation of the requirement definition into functional specifications, project management, creation of custom software, sale of software and hardware, training and transition support, maintenance and further development of the software, transfer and intellectual property rights, production of data carriers, online operation, online support, patch operation, database management, WAN (Wide Area Network) support, LAN (Local Area Network) support, and other services.
The basis for the creation of custom programs is the written performance description, which the contractor develops based on the documents and information provided to them or made available by the client.
Prices
The prices mentioned do not include value-added tax unless explicitly stated.
Prices are calculated in Euros.
Shipping of program media, documentation, and performance descriptions is at the expense and risk of the client. Additionally, any training and explanations requested by the client will be invoiced separately. Insurance is provided only upon the client's request.
Payment
Invoicing takes place, whenever possible, promptly after delivery.
Payments are due without any deduction and free of charges upon invoicing.
For orders comprising multiple units, the contractor is entitled to invoice after the delivery of each individual unit or service.
Payments received by the contractor first settle compound interest, then interest and incidental expenses, then pre-litigation costs (if necessary for appropriate legal action), such as costs of a retained lawyer and collection agency, then the outstanding capital, starting with the oldest debt.
In case of payment default, the contractor charges default interest at the customary bank rate.
Ownership rights
The delivered goods remain the unrestricted property of the contractor until full payment (including interest and costs).
Enforcement of the retention of title constitutes withdrawal from the contract only when explicitly declared.
Upon return of goods, the client is entitled to charge incurred transportation and handling expenses.
Cost estimate
The cost estimate is prepared to the best of professional knowledge; however, no guarantee for accuracy can be provided.
Cost estimates are chargeable. Payment made for a cost estimate will be credited if an order is placed based on this estimate.
Debt collection fees
In case of payment default, the client is obligated to reimburse the contractor for all pre-litigation costs incurred by the contractor (if they were necessary for the appropriate legal pursuit), such as attorney fees and costs of collection agencies.
If the contractor manages the dunning process themselves, the client agrees to cover dunning fees or default interest for each reminder issued.
Warranty, guarantee and liability
If a defect occurs in the delivered goods, the client can initially demand either improvement or replacement of the goods, unless improvement or replacement is impossible or would involve disproportionately high costs for the contractor compared to other remedies. Whether this is the case depends on the value of the defect-free goods, the severity of the defect, and the inconveniences associated with the other remedy for the recipient. The contractor undertakes to carry out the improvement or replacement within a reasonable period after the goods have been handed over by the client.
If both improvement and replacement are impossible or would involve disproportionately high costs for the contractor, the client has the right to a price reduction or, if the defect is not minor, the right to rescind the contract. The same applies if the contractor refuses improvement or replacement or does not carry it out within a reasonable period, if these remedies would involve significant inconvenience for the client, and if, for compelling reasons inherent in the contractor, they are unreasonable.
The client must assert their warranty rights for immovable objects within six months in court. This provision does not apply to consumer transactions under the KSchG.
Excluded from the warranty are wear parts and accessories (such as data carriers, type wheels, etc.), as well as repairs due to unauthorized third-party interventions. If the contract items are used in conjunction with third-party devices and/or programs, a warranty for functional and performance defects of the contract items exists only if such defects also occur without such a connection.
Additional warranty services can be ordered beyond the warranty framework. The same conditions apply to these services. In the event of such a guarantee, the contractor declares that this guarantee does not restrict the client's warranty rights.
If the contractor delivers or sells used movable goods to the client, the client must assert their warranty rights in court within one year, if this is negotiated in detail in writing.
If the contractor is to address a significant defect in the software program, the client is obliged to provide the contractor with the computer system, the software program, protocols, diagnostic documents, and data used by them to a reasonable extent for testing purposes during normal working hours, free of charge, and to support the contractor.
Distance selling
"Distance selling" refers to a contract concluded without simultaneous physical presence of the contracting parties, e.g., through order forms, advertisements, telephone, fax, internet, etc., and it is a consumer transaction.
A distance selling contract with the client is only valid if the contractor has confirmed the order in writing, stating the company name, company address, as well as the essential characteristics of the goods, the price, and the delivery costs.
If the client is a consumer, they can withdraw from a distance selling contract within 7 days, excluding Saturdays as working days. If the contractor has not fulfilled their obligations under point 9.2, the deadline is 3 months.
The consumer's right of withdrawal in a distance selling contract explicitly does not apply to goods made to customer specifications, audio or video recordings, or software that has been unsealed by the client. Furthermore, services whose execution is commenced within 7 working days of the conclusion of the contract, newspapers, magazines, and illustrated magazines, with the exception of contracts for periodic publications listed in § 5b KSchG, are exempt.
Otherwise, the relevant provisions of the Consumer Protection Act apply to distance selling transactions.
Contract termination
In the event of acceptance default or other important reasons, such as the client's bankruptcy or dismissal of bankruptcy for lack of assets, as well as the client's default in payment, the contractor is entitled to terminate the contract if it has not been fully fulfilled by both parties.
In the event of the client's default in payment, the contractor is released from all further performance and delivery obligations.
If the client, without being entitled to do so, withdraws from the contract or requests its termination, the contractor has the choice to insist on the fulfillment of the contract or to agree to the termination of the contract.
Point 10 does not apply to distance selling transactions..
Set-off
The client waives the possibility of set-off. However, this does not apply to consumers in the event of the contractor's insolvency or for counterclaims that are legally related, judicially established, or acknowledged. In these cases, consumers have the option of set-off.
Force majeure
Force majeure or other unforeseen obstacles in the contractor's sphere release them from complying with the agreed obligations, such as operational and traffic disruptions in the client's area. Force majeure and unforeseen events relieve the contractor from the obligation to perform for the duration of the impediment without entitling the client to claims for price reduction.
Copyright, related rights and use
The contractor retains all copyright and related rights to the software/database, including the associated documentation. This also applies if the client modifies, edits, or connects the software with other software with the consent of the provider.
Existing markings, copyright notices, or ownership indications of the provider may not be removed or altered by the client.
The software is only intended for the client's own use. Upon payment of the agreed fee, the client receives the exclusive right to use the software for their own purposes, only for the specified hardware in the contract, to the extent of the acquired number of licenses for simultaneous use on multiple workstations.
All copyrights to the agreed services (programs, documentation, etc.) belong to the contractor or its licensors. By this contract, the client only acquires a license for use.
Making copies for archival and data backup purposes is only permitted to the client with the prior written consent of the contractor, provided that there is no explicit prohibition from the licensor or third parties in the software, and that all copyright and ownership notices are transferred unchanged in these copies.
Data protection and change of address
The client consents to the contractor storing and processing the personal data included in the purchase contract in order to fulfill the contract in an automated manner.
The client is obliged to inform the contractor of any changes to their residential or business address as long as the contractual transaction has not been fully fulfilled by both parties. If the notification is omitted, declarations are deemed to have been received even if they are sent to the last known address.
General Terms and Conditions - Hardware
Preamble
The contractor accepts orders, sells, leases, and delivers exclusively based on these General Terms and Conditions. These conditions apply to all services provided by the contractor or a subcontractor appointed by them under this contract.
Oral agreements or modifications to this contract are only effective if confirmed in writing by the contractor.
Offers are generally non-binding.
Delivery
Delivery is made at the client's expense and risk.
Storage measures and storage costs necessary due to reasons within the client's sphere are borne and at the expense of the client.
Announced delivery dates are considered approximate estimates unless a fixed transaction has been agreed upon. Force majeure or other unforeseen obstacles in the contractor's or their subcontractors' sphere exempt the contractor from complying with the agreed delivery time.
Prices
The prices mentioned do not include VAT unless explicitly stated.
Prices are calculated in Euros.
Payment
Invoicing is done promptly after delivery, if possible.
Payments are due without any deduction and free of charges upon invoicing.
For orders comprising multiple units, the contractor is entitled to invoice after the delivery of each individual unit or service.
Payments received by the contractor shall first cover compound interest, then interest and incidental expenses, followed by pre-litigation costs (if necessary for the appropriate legal pursuit), such as costs of retained lawyers and collection agencies, then the outstanding capital, starting with the oldest debt.
In case of payment default, the contractor shall charge default interest at the customary bank rate.
Ownership rights
The delivered machinery and accessories remain unrestricted property of the contractor until full payment (including interest and costs) has been made.
The assertion of retention of title constitutes a withdrawal from the contract only if expressly declared.
Upon return of goods, the client is entitled to charge incurred transport and handling expenses.
Cost estimate
The cost estimate is prepared to the best of our knowledge, but no guarantee can be provided for its accuracy.
Cost estimates are chargeable. Any fee paid for the cost estimate will be credited if an order is placed based on this cost estimate
Debt collection fees
In case of payment default, the client is obligated to reimburse the contractor for all pre-litigation costs incurred by the contractor (if necessary for the appropriate legal pursuit), such as attorney fees and costs of collection agencies.
If the contractor manages the dunning process themselves, the client agrees to cover dunning fees or default interest for each reminder issued.
Warranty, guarantee and liability
If a defect occurs in the delivered goods, the client can initially demand either improvement or replacement of the goods, unless improvement or replacement is impossible or would involve disproportionately high costs for the contractor compared to other remedies. Whether this is the case depends on the value of the defect-free goods, the severity of the defect, and the inconveniences associated with the other remedy for the recipient. The contractor undertakes to carry out the improvement or replacement within a reasonable period after the goods have been handed over by the client.
If both improvement and replacement are impossible or would involve disproportionately high costs for the contractor, the client has the right to a price reduction or, if the defect is not minor, the right to rescind the contract. The same applies if the contractor refuses improvement or replacement or does not carry it out within a reasonable period, if these remedies would involve significant inconvenience for the client, and if, for compelling reasons inherent in the contractor, they are unreasonable.
The client must assert their warranty rights for immovable objects within six months in court. This provision does not apply to consumer transactions under the KSchG.
Excluded from the warranty are wear parts and accessories (such as data carriers, type wheels, etc.), as well as repairs due to unauthorized third-party interventions. If the contract items are used in conjunction with third-party devices and/or programs, a warranty for functional and performance defects of the contract items exists only if such defects also occur without such a connection.
Additional guarantee services can be ordered beyond the warranty framework. The same conditions apply to these services. In the event of such a guarantee, the contractor declares that this guarantee does not restrict the client's warranty rights.
If the contractor delivers or sells used movable goods to the client, the client must assert their warranty rights in court within one year, if this is negotiated in detail in writing.
Distance selling
"Distance selling" refers to a contract concluded without simultaneous physical presence of the contracting parties, e.g., through order forms, advertisements, telephone, fax, internet, etc., and it is a consumer transaction.
A distance selling contract with the client is only valid if the contractor has confirmed the order in writing, stating the company name, company address, as well as the essential characteristics of the goods, the price, and the delivery costs.
If the client is a consumer, they can withdraw from a distance selling contract within 7 days, excluding Saturdays as working days. If the contractor has not fulfilled their obligations under point 2.9, the deadline is 3 months.
The consumer's right of withdrawal in a distance selling contract explicitly does not apply to goods made to customer specifications, audio or video recordings, or software that has been unsealed by the client. Furthermore, services whose execution is commenced within 7 working days of the conclusion of the contract, newspapers, magazines, and illustrated magazines, with the exception of contracts for periodic publications listed in § 5b KSchG, are exempt.
Otherwise, the relevant provisions of the Consumer Protection Act apply to distance selling transactions.
Contract termination
In the event of acceptance default or other important reasons, such as the client's bankruptcy or dismissal of bankruptcy for lack of assets, as well as the client's default in payment, the contractor is entitled to terminate the contract if it has not been fully fulfilled by both parties.
In case of payment default by the client, the contractor is released from all further performance and delivery obligations.
If the client, without being entitled to do so, withdraws from the contract or requests its termination, the contractor has the choice to insist on the fulfillment of the contract or to agree to the termination of the contract.
Point 10 does not apply to distance selling transactions.
Set-off
The client waives the possibility of set-off. However, this does not apply to consumers in the event of the contractor's insolvency or for counterclaims that are legally related, judicially established, or acknowledged. In these cases, consumers have the option of set-off.
Force majeure
Force majeure or other unforeseen obstacles in the contractor's sphere release them from complying with the agreed obligations, such as operational and traffic disruptions in the client's area. Force majeure and unforeseen events relieve the contractor from the obligation to perform for the duration of the impediment without entitling the client to claims for price reduction.
Data protection and change of address
The client consents to the contractor storing and processing the personal data included in the purchase contract in order to fulfill the contract in an automated manner.
The client is obliged to inform the contractor of any changes to their residential or business address as long as the contractual transaction has not been fully fulfilled by both parties. If the notification is omitted, declarations are deemed to have been received even if they are sent to the last known address.
Jurisdiction and applicable law
Austrian substantive law applies. The applicability of the UN Sales Convention is excluded. Austrian domestic jurisdiction is agreed upon.
For all claims against a consumer who has their domicile, habitual residence, or place of employment in Austria arising from this contract, one of the courts in whose district the consumer has their domicile, habitual residence, or place of employment is competent.
If individual provisions of these terms and conditions are or become invalid or ineffective, this shall not affect the validity of the remaining provisions.
