General Terms and Conditions (of Business)

Scope and Validity of the Contract:

1. All deliveries and services provided by Andreas Pircher, Pircher Software (hereinafter referred to as Pircher Software or Contractor), are exclusively based on these General Terms and Conditions (AGB). Pircher Software is not obligated to object to the AGB of contracting parties, even if the validity of the same is explicitly stated in these AGB. Pircher Software declares its intention to contract solely based on these AGB. The purchasing conditions of the client are hereby excluded for the specific legal transaction and the entire business relationship.
2. All offers are non-binding and subject to change. All orders and agreements are legally binding only when signed in writing and in accordance with the company by the contractor, and they obligate only to the extent specified in the order confirmation. These orders and agreements also become valid upon actual fulfillment by Pircher Software. Changes or additions to the contract require written form for their legal effectiveness. This also applies to any deviation from this requirement of written form. Furthermore, the content of the offer remains the intellectual property of Pircher Software. In particular, any reuse of the offer content and distribution to third parties is strictly prohibited.

Performance and testing:

1. The scope of an order can include:
   • Development of organizational concepts
   • Global and detailed analyses
   • Creation of custom programs
   • Participation in commissioning (transition support)
   • Program maintenance
   • Creation of program carriers
   • Other services.
2. The development of individual organizational concepts and programs is based on the type and scope of the binding information, documents, and tools provided by the client. This includes practical test data and sufficient testing opportunities, which the client must provide in a timely manner, during regular working hours, and at their own expense. If the client is already working in live operation on the system provided for testing, the responsibility for securing real data lies with the client.
3. The basis for creating individual programs is the written performance description in the order confirmation, which the contractor develops based on the documents and information provided to them, subject to cost calculation, or which the client provides. The client should review this performance description for accuracy and completeness and annotate it with an approval note. Later change requests may lead to separate agreements regarding deadlines and prices.
4. Individually created software or program adaptations require program acceptance for the respective affected software package no later than four weeks after delivery by the client. This acceptance is confirmed by the client. (Verification of accuracy and completeness based on the performance description accepted by the contractor, using the test data provided as specified in section 2.3). If the client allows the four-week period to pass without program acceptance, the delivered software is considered accepted as of the end date of that period. When the software is used in live operation by the client, it is considered accepted in any case. Any defects, which are deviations from the agreed-upon written performance description, must be adequately documented by the client and reported in writing to the contractor, who will promptly address the issue. If significant defects are reported in writing, meaning that live operation cannot begin or continue, a new acceptance process is required. The client is not entitled to reject software acceptance due to minor defects.
5. When ordering library (standard) programs, the client confirms knowledge of the scope of the ordered programs with the order.
6. If, during the course of the work, it becomes evident that the execution of the order according to the performance description is actually or legally impossible, the contractor is obligated to immediately notify the client. If the client does not amend the performance description accordingly or create the conditions for an execution in line with the General Terms and Conditions, the contractor may reject the execution. If the impossibility of execution results from the client’s omission or a subsequent modification of the performance description by the client, the contractor is entitled to withdraw from the contract. The costs and expenses incurred by the contractor up to that point, as well as any dismantling costs, are to be reimbursed by the client.
7. Shipping of program carriers, documentation, and performance descriptions is at the expense and risk of the client. Additionally, any requested training sessions and explanations by the client will be billed separately. Insurance is provided only upon the client’s request.

Prices, Taxes, and Fees:

1. All prices are in euros and exclude value-added tax (VAT). They apply only to the current order. The mentioned prices are based on the business location or premises of the contractor. The costs of program carriers (e.g., magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contractual fees will be invoiced separately. All expenses, such as packaging, shipping, or customs costs, will also be billed separately. For services, especially maintenance, repair, installation work, and training, the applicable hourly rates of Pircher Software will be charged. The VAT amount will be separately indicated on the invoice.
2. For standard programs, the valid list prices on the day of delivery apply. For all other services (organizational consulting, programming, training, transition support, telephone consultation, etc.), the labor effort is invoiced based on the valid hourly rates on the day of service provision. Deviations from the time expenditure underlying the contract price, which are not attributable to the contractor, are calculated based on the actual occurrence.
3. The costs for travel, daily allowances, and overnight expenses will be invoiced separately to the client based on the currently valid rates. Travel time is considered working time.
4. The general principle is that the prices used for calculation are those valid on the day of the quotation. However, Pircher Software reserves the right to adjust prices based on production costs (such as changes in prices from suppliers, etc.).

Delivery Terms:

1. The contractor strives to adhere to the agreed dates of fulfillment (completion) as closely as possible. The targeted fulfillment dates can only be met if the client provides all necessary work and documents in full, especially the accepted performance description according to point 2.3, at the dates specified by the contractor and fulfills their cooperation obligation to the required extent, in particular, all technical and other details of the order must be clarified. Delivery delays and cost increases caused by incorrect, incomplete, or subsequently altered information and documents provided are not the responsibility of the contractor and cannot lead to a delay on the part of the contractor. Operational disruptions, events of force majeure, other events outside the control of Pircher Software, especially delivery delays from upstream suppliers and the like, only entitle Pircher Software to extend delivery deadlines or to cancel the contract excluding warranty claims, error contestation, and claims for damages. Any additional costs resulting from this shall be borne by the client.
2. For orders that include several units or programs, the contractor is entitled to make partial deliveries and issue partial invoices.
3. In any case, the office of Pircher Software in Dornbirn is considered the place of fulfillment; the product is to be collected by the client from there unless otherwise agreed in writing. In the event that Pircher Software delivers or has the product delivered to another location, this shall be done at the expense and risk of the client. This also applies to partial deliveries. Insurance of goods is only carried out at the expense and explicit request of the contracting partner by Pircher Software.

Payment:

1. Invoices issued by the contractor, including sales tax, are payable without any deductions and free of charges within 7 days of receipt of the invoice, unless otherwise noted on the respective invoice. The payment conditions set for the entire order apply analogously to partial invoices.
2. For orders that include several units (e.g., programs and/or training, implementation in partial steps), the contractor is entitled to invoice after delivery of each individual unit or service.
3. Adherence to the agreed payment dates is an essential condition for the execution of delivery or contract fulfillment by the contractor. Non-compliance with the agreed payments entitles the contractor to stop ongoing work and withdraw from the contract. All associated costs and loss of profit shall be borne by the client. In case of payment delay, default interest will be charged at the customary bank rate; furthermore, all costs incurred as a result, such as extrajudicial reminder, collection, and legal fees will be charged to the client. If two installments are not met in partial payments, the contractor is entitled to declare loss of term and make submitted acceptances due.
4. If after conclusion of the contract there is a deterioration in the financial circumstances of the contracting partner or circumstances become known which are suitable to reduce his creditworthiness, all claims become due for payment immediately. In this case, further deliveries will only be made against prepayment.
5. The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims, or complaints.
6. Goods (especially hardware) remain the property of Pircher Software until full payment of all claims, regardless of legal grounds (even from previous transactions). Asserting the retention of title does not constitute withdrawal from the contract and does not lift the obligations of the contracting partner, especially regarding payment of the purchase price or repair fees. While retention of title exists, resale, processing, pledging, security transfer or other disposition of the purchased or repaired goods to a third party is prohibited. The contracting partner must immediately notify Pircher Software in case of seizure or other impairment of property by third parties. The contracting partner is obliged to replace costs and measures to remove interference, especially costs of intervention processes such as exscinding processes and similar actions. Furthermore, he is obliged to treat Pircher Software’s goods with care. When asserting retention of title, the contracting partner must compensate for any depreciation regardless of fault and pay a reasonable fee for use. If the contracting partner does not meet his obligations in any way or stops his payments, then the entire remaining debt becomes due. In this case, Pircher Software is entitled to demand immediate surrender of repaired or sold goods excluding any right of retention. Pircher Software is not obliged to perform warranty repairs as long as the contracting partner has not settled outstanding claims.

Copyright and Usage:

1. All copyrights to the agreed services (programs, documentation, etc.) belong to the contractor or its licensors. The client receives exclusively the right to use the software after payment of the agreed fee exclusively for its own purposes, only for the hardware specified in the contract, and to the extent of the number of licenses acquired for simultaneous use on multiple workstations. This contract only acquires a license to use the work. Editing by the client or by third parties is excluded according to UrhrG (Copyright Act). The client’s participation in the production of the software does not acquire any rights beyond the use specified in this contract. Any violation of the contractor’s copyrights results in claims for damages, where full satisfaction must be provided in such a case.
2. The client is permitted to make copies for archive and data backup purposes under the condition that there is no explicit prohibition by the licensor or third parties in the software, and that all copyright and property notices are transferred unchanged into these copies.
3. If disclosure of the interface is required for producing interoperability of this software, it must be commissioned by the client against reimbursement of costs from the contractor. If the contractor does not comply with this demand and decompilation occurs according to UrhrG, the results are exclusively to be used for creating interoperability. Misuse results in claims for damages.
4. The respective provisions of the End User License Agreement (EULA) or any distribution rights that come with the software apply. If one or more parts of the EULA contradict one or more clauses of this contract, then the part of the respective EULA shall prevail.

Right of Withdrawal:

1. In the event of exceeding an agreed delivery time due to sole fault or unlawful action of the contractor, the client is entitled to withdraw from the respective order by registered letter, even if within a reasonable extension period (at least 14 days) the agreed service is not provided in essential parts and no fault lies with the client. General delivery delays do not entitle the contracting partner to assert warranty, error contestation, or claims for damages.
2. Force majeure, labor disputes, natural disasters, computer crashes, operational disruptions of any kind, transport embargoes, and other circumstances beyond the control of the contractor release the contractor from the delivery obligation or allow him to reset the agreed delivery deadline.
3. Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge a cancellation fee amounting to 30% of the undebited order value of the overall project in addition to the services provided and costs incurred.

Warranty, Maintenance, Changes:

1. Complaints about defects are only valid if they concern reproducible defects and if they are documented in writing within 4 weeks of delivery of the agreed service or in the case of custom software after program acceptance according to point 2.4. In the event of a justified complaint about defects, the defects will be remedied within a reasonable period (approx. 14 days), whereby the client must enable the contractor to carry out all measures necessary for examining and remedying the defects. The client is obliged to check the product for any defects and completeness upon acceptance.
2. Corrections and additions that prove necessary until the handover of the agreed service due to organizational and program-technical defects, which are attributable to the contractor, will be carried out free of charge by the contractor.
3. Costs for assistance, misdiagnosis as well as error and disturbance elimination, which are attributable to the client, as well as other corrections, changes, and additions will be carried out by the contractor against calculation. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client himself or by third parties.
4. Furthermore, the contractor assumes no warranty for errors, malfunctions or damages due to improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from installation and storage conditions) as well as transport damages.
5. For programs that are subsequently modified by the client’s own programmers or third parties, any warranty by the contractor is void.
6. Insofar as the subject of the order is the modification or addition of already existing programs, the warranty refers to the modification or addition. The warranty for the original program does not revive as a result.
7. The respective provisions of the End User License Agreement (EULA) or any distribution rights that come with the software apply. If one or more parts of the EULA contradict one or more clauses of this contract, then the part of the respective EULA shall prevail.

Liability:

1. The contractor is liable for damages only if intent or gross negligence can be proven, within the scope of legal provisions. Liability for slight negligence is excluded. The claim for compensation of consequential damages and financial losses, non-realized savings, loss of interest, and damages from third-party claims against the contractor is excluded in any case, as far as legally permissible. The respective provisions of the End User License Agreement (EULA) or any distribution rights that come with the software apply. If one or more parts of the EULA contradict one or more clauses of this contract, then the part of the respective EULA shall prevail.
2. Furthermore, it is strictly prohibited for the client to allow unauthorized third parties access to this software or to make changes themselves. In case of non-compliance, regardless of existing claims for damages, a penalty of EUR 50,000 is to be paid by the client.

Data Protection, Confidentiality:

The contractor obligates its employees to comply with the provisions according to §20 of the Data Protection Act.

Miscellaneous:

Should individual provisions of this contract become ineffective, this shall not affect the remaining content of this contract. The contracting parties will cooperate in partnership to find a regulation that comes as close as possible to the ineffective provisions.

Final Provisions:

Unless otherwise agreed, the legal provisions applicable between full merchants shall apply exclusively according to Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the court materially competent for the business location of Pircher Software (Dornbirn) is agreed upon as exclusive. For sales to consumers within the meaning of the Consumer Protection Act, the foregoing provisions shall apply only insofar as the Consumer Protection Act does not mandatorily prescribe other provisions.