General Terms and Conditions, version 2015
GENERAL CONDITIONS for the provision of organisational and programming services, the granting of licences and other rights to use programs, and the sale and delivery of software products by Alphacon Sales & Consulting GmbH (hereinafter: Alphacon), Handelskai 94–96, 1200 Vienna.
1. General provisions
Business dealings with Alphacon are governed exclusively by Alphacon’s General Terms and Conditions (GTC). Terms and conditions of Alphacon’s contracting partners, hereinafter the Client, do not become part of the contract and are expressly rejected by Alphacon. Other terms do not bind Alphacon even if Alphacon does not object to them again when the contract is concluded. Alphacon’s GTC are deemed accepted at the latest upon receipt of Alphacon’s services.
Orders and agreements are legally binding only if countersigned in writing by Alphacon with an authorised company signature, and bind Alphacon only to the extent stated in the order confirmation. Alphacon’s offers are generally non-binding.
2. Scope of the order
2.1. Alphacon develops individual software and database concepts and specifications (requirements descriptions) for custom software on the basis of binding information and documents to be supplied in full by the Client. These include the required test data to the extent requested by Alphacon and the testing facilities specified by Alphacon, which the Client must provide promptly and free of charge. If the Client is already using the system provided for testing in live operation, the Client alone is responsible for backing up live data.
2.2. The contractual basis for Alphacon’s services is the written service description (technical documentation), prepared by Alphacon at the Client’s expense on the basis of the Client’s information. The Client must check the service description for accuracy and completeness and confirm both to Alphacon in writing. Subsequent changes require a separate order and separate payment.
2.3. Software and program changes prepared by Alphacon for the Client must be accepted by the Client within four weeks of delivery by signing an acceptance record. If the Client does not sign the acceptance record within that period or uses the delivered software in live operation, Alphacon’s delivery is deemed accepted.
If Alphacon’s deliveries deviate from the service description, the Client must notify Alphacon immediately and describe the deviations precisely. If deviations make it impossible to start or continue live operation, a further acceptance procedure must take place once the condition specified in the service description has been established.
2.4. If performance of the order in accordance with the service description proves factually or legally impossible, Alphacon must notify the Client immediately. If the Client does not amend the order so that it can be performed, Alphacon may refuse further performance and withdraw from the contract immediately. In that case, Alphacon is entitled to payment and reimbursement of costs for services performed up to withdrawal.
2.5. Program media, documentation and service descriptions are dispatched at the Client’s expense and risk. Training services provided by Alphacon must be paid for separately.
2.6. Alphacon may have its services performed by third-party companies without restriction.
3. Prices
3.1. All prices are in euros, excluding VAT, ex Alphacon’s premises. Costs of program media (such as CDs, DVDs, USB drives and online storage/cloud services) and any contract fees are invoiced separately. Prices are non-binding unless Alphacon expressly promises binding prices.
3.2. Software libraries and standard programs are charged at Alphacon’s list prices applicable on the delivery date. All other services (organisational consulting, programming, training, migration assistance and telephone consulting) are charged according to the work performed at the rates applicable on the date of performance.
3.3. Where hourly billing is agreed, Alphacon’s hourly rates published on its website at the time of performance apply.
3.4. Alphacon may claim cost increases occurring after conclusion of the contract, particularly increases in wage, material and other costs underlying its price calculation.
3.5. Travel expenses and daily and overnight allowances are invoiced separately at the applicable rates. Travel time counts as working time.
4. Delivery dates
4.1. Alphacon will observe agreed performance or completion dates as closely as possible once the Client has provided all information needed to process the order.
4.2. Alphacon is not responsible for delivery delays or cost increases caused by incorrect, incomplete or subsequently amended information from the Client. The Client bears the resulting additional costs incurred by Alphacon.
4.3. Alphacon may make and invoice partial deliveries where the services to be provided are divisible.
5. Payment
5.1. Unless otherwise agreed, Alphacon’s invoices are payable within 14 days of receipt, without any deduction and free of charges.
5.2. Alphacon may suspend its services if the Client is in arrears with payments. Alphacon may withdraw from the contract if the Client does not remedy the default after a grace period of five working days and notice of withdrawal.
If the Client defaults on payment, Alphacon may also block access to the software until all outstanding amounts have been paid in full, provided the Client has first received a reminder granting a 14-day grace period and warning of the block, and that period has expired without payment. The Client remains obliged to pay the contractual fees, particularly monthly licence and maintenance fees. To enforce the block, Alphacon may independently access the servers on which the partner operates the software. The partner must enable this access and take all necessary steps, in particular provide the required access information and, if the software is operated on third-party servers, make the necessary declarations to those third parties.
5.3. The Client may not withhold payments on account of alleged defects or offset its own claims against fees owed to Alphacon.
6. Place and time of performance
Unless expressly agreed otherwise, the place of performance is Alphacon’s current management headquarters. Unless expressly agreed otherwise, Alphacon performs services during the business hours published on its website.
7. Copyright and use
7.1. All copyrights in services provided by Alphacon (such as programs and documentation) remain with Alphacon or its licensors. After payment of the agreed fee, the Client receives the right to use the supplied software solely for its own purposes, solely on the hardware specified in the service description and only to the extent of the number of licences purchased for simultaneous use at multiple workstations. The Client may not transfer this right to third parties, for payment or free of charge.
The Client may not distribute items subject to Alphacon’s copyright or its licensors’ rights, particularly software and programs. Participation in creating the software does not give the Client any rights in the subject matter of the contract. Infringement of the contractor’s copyright gives rise to claims for damages, with full compensation payable in such a case.
7.2. The Client may make copies for archiving and backup purposes provided the software contains no express prohibition by the licensor or third parties and all copyright and proprietary notices are reproduced unchanged.
7.3. Where disclosure of interfaces is required to establish interoperability of software supplied by Alphacon, the Client must commission Alphacon to make that disclosure. Alphacon is entitled to payment at the applicable rates.
8. Client’s right of withdrawal
8.1. If Alphacon exceeds agreed delivery times, the Client may set a grace period of at least three weeks and withdraw from the contract if at least the essential parts of the agreed service are not provided within that period.
8.2. Force majeure, labour disputes, natural disasters, transport restrictions and other circumstances beyond Alphacon’s control release Alphacon from its delivery obligation until those obstacles cease.
8.3. Cancellation by the Client requires Alphacon’s written consent. If Alphacon agrees to terminate the contract, it may charge, in addition to the contractual payment for services already performed, a cancellation fee of 30% of the unperformed portion of the order.
9. Warranty and modifications
9.1. Notices of defects are valid only if made in writing immediately, and at the latest within four weeks of delivery and acceptance pursuant to clause 2.4, with a precise description of the defects. Where a notice is justified, Alphacon will remedy remediable defects within a reasonable period. The Client must provide the necessary assistance so that defects can be remedied quickly and without obstruction. Price reductions for remediable defects are excluded.
Claims for price reductions are also excluded for irremediable defects that do not impair the function of the supplied software (minor defects).
9.2. Costs of diagnosing and remedying faults attributable to the Client must be paid separately by the Client. This also applies to remedying defects where program changes, additions or other interventions have been carried out by the contractor itself or by third parties.
9.3. Alphacon provides no warranty for errors, faults or damage caused by improper operation or storage, changed operating system components, interfaces or parameters, unsuitable organisational aids or data media, or transport damage.
9.4. Any warranty ceases if the Client subsequently modifies programs supplied by Alphacon or commissions third parties to modify them.
9.5. Where an order concerns modification or extension of existing programs, the warranty covers only that modification or extension. The warranty for the original program is not revived.
9.6. Alphacon warrants that supplied items have the properties normally expected of such items in business dealings. Alphacon warrants additional properties only if it has promised them in writing.
9.7. Alphacon is not liable under the Product Liability Act for property damage suffered by an entrepreneur.
10. Liability
Alphacon is liable for damage caused intentionally or by gross negligence. The Client must prove intent or gross negligence. Liability for slight negligence is excluded.
11. Loyalty
The contracting parties undertake to act loyally towards one another. During the contract and for 12 months after its termination and full completion of the contractual activity, neither party will solicit the other party’s employees, including through third parties. A party breaching this obligation owes the other party a contractual penalty of EUR 20,000, irrespective of proof of fault or actual damage, which is not subject to judicial reduction. Further claims for damages remain unaffected.
12. Confidentiality
The parties must keep confidential the details of their contractual relationship and the other party’s business and/or trade secrets learned in that relationship.
The Client must use all information received from Alphacon in any form during the business relationship solely for the purposes and within the scope of this contractual relationship. This includes information about the contractual software, its source code, online visualisation, configuration and/or process representations, ordering options over a network and/or their development; other technical implementation details; other business matters of Alphacon, its affiliated companies, customers and suppliers; and this contract, its annexes and attachments and the related discussions and negotiations. Otherwise, the Client must treat this information as strictly confidential and must not disclose it to third parties.
The Client must take suitable precautions to prevent unauthorised persons from learning confidential information. Potential recipients, particularly employees and other persons engaged to perform this contract, must be bound to confidentiality and compliance with section 15 of the Data Protection Act, and the Client must ensure their compliance.
If disclosure is legally mandatory, the Client must inform Alphacon immediately so that Alphacon can take measures to maintain the greatest possible confidentiality.
Where confidential information is contained in written documents or recorded or stored on another medium, copies may be made solely for the purposes and within the scope of this contractual relationship. The Client expressly acknowledges that it has no right of retention of any kind in these documents. They must be returned to Alphacon immediately, with no copies or other documentation retained, and all electronically stored confidential information must be deleted when the contractual relationship ends or Alphacon requests this in writing.
These confidentiality obligations continue beyond the contractual relationship unless the parties expressly agree otherwise.
For each breach, the Client must pay a contractual penalty of EUR 75,000, irrespective of damage or fault, which is not subject to judicial reduction. Alphacon may also claim damages exceeding the penalty.
13. Severability
If individual provisions of contracts between the parties are or become invalid, the remaining content remains unaffected. The parties will cooperate to find a provision that comes as close as possible to the invalid provision.
14. Applicable law and jurisdiction
Austrian law applies exclusively. The place of jurisdiction is Vienna.
15. Retention of title
Alphacon’s deliveries remain its property until all claims, including future claims and particularly outstanding balances on current accounts, to which Alphacon is entitled on any legal basis have been paid. This also applies where payments are made against specifically designated claims.
Alphacon must be informed immediately of any seizure or other third-party claim against items owned by Alphacon. The Client must cooperate in every way and provide the necessary assistance to enforce Alphacon’s ownership rights. The Client bears the resulting costs.
The Client may not resell items supplied by Alphacon to third parties without Alphacon’s express written consent.
16. Written form
Contracts, amendments and additions to contracts, and all declarations by the parties concerning their content, amendments or additions, are effective only in writing. This requirement also applies to any agreement to waive written form.
17. Duration and amendments
The current version of Alphacon’s General Terms and Conditions is published with a digital signature on www.alphacon.at.