General Terms and Conditions
The General Terms and Conditions (hereinafter referred to as GTC) form the contractual basis for the legal transactions between your company (hereinafter referred to as the customer) and the not-registered company
(hereinafter referred to as contractor).
1. Scope of contract and validity
1.1 All orders and agreements are then legally binding if signed in writing by the customer’s representative and only bind to the extent specified in the order confirmation. Purchasing conditions of the customer are hereby excluded for the respective legal transaction and the entire business relationship.
1.2 Offers are generally non-binding and require the written form. The contractor is free to accept or reject the customer’s orders.
2. Subject of the contract
These terms and conditions apply to the delivery of software and accordingly to the provision of software services by the contractor. Software within the meaning of these conditions are the computer programs – in the legal sense of the copyright law – distributed by the customer as standard software, or individually developed or adapted for use by the customer, including all documents provided for this purpose.
2.1 The customer receives the non-transferable and non-exclusive right to use the software in compliance with the contractual specification according to point 4 and to the extent of the number of licenses acquired on the specified computers for the specified period. In the case of supplied hardware, this right is restricted exclusively to use on the supplied hardware.
2.2 The customer is explicitly prohibited from sub-licensing the software.
2.3 The customer may neither rent nor lend the software.
2.4 All other rights to the software are reserved by the contractor. The customer is, without prior written consent of the contractor, in particular not entitled to reproduce or change the software, or make the software accessible to third parties or to use it on hardware other than the contractual one, without prejudice to the provisions of the Copyright Act.
2.5 If the customer cooperates in the production of the software, the customer does not acquire any rights other than those specified in the respective contract.
2.6 Additional services and deliveries are provided on the basis of separate agreements and will be invoiced according to the contractor’s current list prices.
2.7 Unless otherwise agreed upon, the contractual services are performed by the contractor at his choice either in the contractor’s business premises, if necessary via remote maintenance, during the contractor’s regular working hours.
If, exceptionally and at the request of the customer, the service is performed outside of regular business premises and/or working hours, the additional costs will be invoiced separately.
The contractor is responsible for selecting the employee providing the contractual services.
2.8 The contractor is entitled to use third parties in whole or in part to fulfil its obligations.
2.9 The contractor is entitled to take technical measures to check the validity of the software license. For example, the software can contact license servers available on the Internet to check the validity of the license.
If it is determined that the license is not being used in accordance with the contractually agreed conditions, the use of the software will be interrupted until the license becomes valid again.
3. Obligations of the customer
The customer is responsible:
3.1 for the selection of the standard software offered by the contractor
3.2 in the case of individual software, for transmitting all information that is necessary for the creation of the software or the creation of the functional specification, before the contract is concluded.
3.3 for the use of the software and the results achieved with it
3.4 for all data backup, even if the data is hosted on an external server
3.5 to create the prerequisite conditions for remote maintenance, according to the specifications of the contractor, whenever the contractor needs access to the customer’s systems: for example for installation, troubleshooting and diagnosis, maintenance, etc.
3.6 for the protection of all rights of the contractor, e.g. industrial property rights, copyright, including the right to a copyright notice on the software and the protection of the contractor’s claims to the confidentiality of business and trade secrets, including its employees and vicarious agents or third parties; this also applies if the software has been changed or linked to other programs. This obligation persists even after the contract has ended.
4. Software specifications
4.1 The contractor provides the specifications for standard software. He is entitled to change the software specifications for new versions.
For example, software specifications can contain features, documents on special functions, hardware and software requirements, installation requirements, operating conditions, operating manual.
4.2 As the standard software is continuously being improved, the current version of the standard software can differ from the software specifications, both technically and in terms of design. The software specifications are therefore only approximate and in no way a legally binding acceptance unless explicitly guaranteed by the contractor in written form with an authorised corporate signature.
The contractor is authorised to change the functional scope of the software unilaterally at any time. These changes have no effect on existing installations and are only effective when updating or upgrading. The contractor is, therefore, free to remove features of the software that were temporarily available, or to cease features unilaterally and to offer them in a different form – for example as additional packages.
The customer can request offers for desired extensions of the contractor’s standard software. The contractor is free to accept or reject the customer’s request.
Extensions will be integrated into the standard software and will be available in the next version. Unless otherwise agreed, the offer includes the update of a single existing license of the customer on a single server.
4.4 For individual software commissioned by the customer, the specifications must be agreed upon in writing between the contractor and the customer.
5. Data security
5.1 If data is transmitted to the contractor, for example, if the customer uses the optional hosting service, the customer will make backup copies. If included in the respective offer, the data is regularly backed up by the contractor. Should a loss of data occur anyway, then the customer is obliged to transmit the relevant data stocks free of charge to the contractor again.
5.2 The customer is obliged to carry out a complete data backup before conducting any changes on his own or before commissioned changes.
5.3 Depending on the service, the customer may receive confidential information from the contractor, for example, license‑keys or login data such as username, e‑mail, etc. The customer is obliged to treat these confidentially and is liable for any misuse that results from the unauthorised use of this information. If the customer becomes aware that unauthorised third parties got hold of this information, the contractor must be informed immediately. If, due to the fault of the customer, third parties use the services of the contractor through misuse of this information, the customer is liable towards the contractor for usage fees and damages. In the event of suspected cases, the customer has the option of requesting new data against corresponding costs: for example: generating a new license key, resetting passwords, etc.
The currently applicable privacy guidelines are available online: https://www.tmtron.com/privacy
7.1 The customer may not use the software for production-critical purposes (Mission Critical Data), as it is possible at any time that the server is temporarily unavailable: for example, during updates, if the Internet connection fails, or if the server hardware fails, etc.
7.2 Under no circumstances may the customer use the software for safety-related purposes: for example, if there is a risk of material damage or threat to life or physical condition due to a possible malfunction.
8. Delivery, risk transfer and acceptance
8.1 The software is supplied by the contractor in machine-readable form or, if agreed, installed on a target server. The contractor is entitled to deliver the current version of the software at the time of delivery.
8.2 If no delivery date is agreed, the delivery will be scheduled by the contractor in accordance with the applicable delivery times and the delivery date will be announced to the customer.
8.3 The contractor endeavours to provide information within a reasonable period of time to the customer inquiries during the regular working hours of the contractor.
8.4 The customer is not entitled to withdraw from the contract or to claim damages due to the fact that the expected dates have been exceeded.
8.5 The shipping of software, data storage mediums and hardware is carried out at the expense and risk of the customer. Insurance is only procured at the request of the customer.
8.6 Services that are out of scope of the delivery, such as training and explanations, will be invoiced separately.
8.7 Should it become apparent, in the course of contract delivery, that the execution of the order according to the service description is actually or legally impossible, the contractor is obliged to notify the customer immediately. If the customer does not change the specification of services accordingly or create the prerequisite conditions so that contract fulfilment is possible, the contractor can reject the contract fulfilment. If the contract fulfilment is impossible due to a failure of the customer or a subsequent change in the service description by the customer, the contractor is entitled to terminate the contract in accordance with point 14.2.
8.8 If software, in the possession of the customer, is damaged in whole or in part or accidentally deleted, the contractor will endeavour to deliver replacements within the scope of availability and reasonableness, against corresponding costs for processing, data storage, shipping or new installation.
8.9 If an acceptance procedure is agreed upon, the customer can use the software free of charge during a trial period. The trial period begins with the delivery of the software and lasts one week unless otherwise agreed.
8.10 The software is considered accepted if:
8.10.1 the customer does not complain about major defects in writing within the trial period, or
8.10.2 the customer uses the software in production, or
8.10.3 the customer uses the software after the trial period, or
8.10.4 the customer confirms compliance with the contractual specifications.
8.11 If no acceptance procedure is agreed upon, the software is deemed accepted upon delivery.
9. Warranty and responsibility for defects
9.1 Defects are malfunctions as specified in the respective software contract.
9.2 Unless otherwise agreed, a warranty period of six months from acceptance in accordance with point 8.10 or delivery in accordance with point 8.11 applies.
9.3 In the case of software, the contractor guarantees compliance with the specifications in point 4 valid at the time the contract is concluded, provided that the software is used in accordance with the applicable installation requirements and used under the applicable conditions of use.
The warranty includes fault diagnosis and defect or fault elimination during the warranty period in accordance with point 9.2.
The error diagnosis can take place on the basis of an immediate error message from the customer or from findings of the contractor.
Warranty claims must meet all of the following requirements:
immediate notification of defects, as well as an immediate examination or inspection of the software upon delivery
that the defects conform to the definition in point 9.1
that the defect is reproducible
that the customer uses the latest version that is offered to him free of charge within the warranty period
that the customer makes available all documents and information, which are required to remedy the defect free of charge
that the contractor is given access to the system via remote maintenance during his regular working hours.
9.4 The customer bears the burden of proof that the defect already existed at the time of delivery. The reversal of the burden of proof, i.e. the obligation of the contractor to prove his innocence of the defect, is excluded.
9.5 The contractor assumes no liability for defects, malfunctions or damage resulting from improper operation, changed operating system components, use of third-party software, improper use of interfaces and parameters, use of unsuitable organisational means and data storage mediums, abnormal operating conditions, in particular deviations from the installation, storage and operating conditions, or due to transport damage.
9.6 In the case of warranty, improvement has priority over price reduction or redhibitory action.
9.7 The contractor may choose to remedy defects by delivering new software or by changing the software accordingly.
9.8 No warranty applies for software to which the customer or third parties have made changes to, without the prior written consent of the contractor, even if the defect occurs in an unchanged part. If it is determined, in the course of the fault diagnosis, that there is no warranty claim or that the cause of the defect is not in the software supplied by the contractor, the customer must bear all incurred costs.
9.9 The contractor does not guarantee that the software functions meet the requirements of the customer, that the programs work together in the selection made by the customer, that they run continuously or without errors or that all software defects can be remedied.
9.10 If the software does not meet the specifications in a malfunctioning manner during the warranty period and if the contractor is, despite sustained efforts, unable to achieve compliance with the specifications within a reasonable period, the customer has the right of early termination of the contract for the respective software according to point 14.2.
9.11 Defects in individual programs do not entitle the customer to terminate the contract for other programs.
9.12 If the subject of the contract is the change or extension of already existing programs, the warranty refers to the change or extension. This does not revive the warranty of the original program.
9.13 Further claims according to the defectiveness of the software, with the exception of those under point 10, are excluded.
9.14 If the customer has not concluded a software maintenance contract with the contractor, the contractor will charge for maintenance such as error diagnosis and remedy, updates, new installations, maintenance etc., which are not covered by the remedial measures, according to the list prices valid at the time.
10. Industrial property rights and copyright
10.1 All property rights, copyrights and other property rights, in particular intellectual property rights, the program, the source code and/or the program documentation, including the program and function description, remain with the contractor. References to copyrights or other industrial property rights that are on or in the software may not be changed, removed or otherwise rendered unrecognisable.
10.2 Any violation of the contractor’s copyrights will result in claims for damages, in which case full satisfaction must be paid.
10.3 The contractor will support the customer in defending against all claims based on the fact that software used in accordance with the contract violates an industrial property right or copyright that is effective according to the Austrian legal system. The customer will immediately notify the contractor in writing and, in the event of a legal dispute, issue a dispute if such claims are raised against him.
If claims are made from the violation of property rights, for which the contractor is responsible, the contractor can change, exchange or obtain a right of use at his own expense. If this is not possible with reasonable effort, the customer must immediately return the original and all copies of the software, including the documents provided, at the request of the contractor.
11.1 The contractor is liable for damage, only if he can be proven to have acted with intent or gross negligence, under the statutory provisions. The total liability of the contractor in cases of gross negligence is limited to the net order value or to EUR 200,000 (in words: two hundred thousand), whichever is lower.
11.2 Liability for slight negligence and compensation for consequential damage, pure financial loss, indirect damage, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, lost profit, savings not achieved, loss of interest and damage from claims by third parties against the customer are excluded.
11.3 If the customer fails to comply with any conditions for installation, implementation and use, such as those contained in operating instructions, or from official conditions of admission, any compensation is excluded.
11.4 If contractual penalties have been agreed, further claims from the respective title are excluded.
11.5 In summary, the provisions of point 11 apply to all claims of the customer against the contractor, regardless of the legal reason and title and are also effective for all employees, subcontractors and suppliers of the contractor.
12. Terms of settlement and payment
12.1 All agreed prices and charges are in euros and only apply to the present order.
12.2 In the absence of any other agreement one-time usage fees – these can be payable instead of or in addition to continued usage fees – are due as follows:
30% of the total price when the contract is concluded
70% of the price of each software service separately listed in the order, after acceptance in accordance with point 8.
12.3 The invoices submitted by the contractor are sent electronically (e.g. by e-mail) and are payable at the latest 14 days after receipt of the invoice without any deductions and free of charges. The payment terms also apply to partial invoices analogous to the entire order.
12.4 When orders consist of several units or programs, the contractor is entitled to make partial deliveries or to issue partial invoices.
12.5 If a continued usage fee is agreed upon, the settlement takes place annually in advance unless otherwise agreed. The usage fee is payable from the day of acceptance in accordance with point 8.
12.6 In the event of cost or tax increase after signing of the contract such as wage costs, material costs, costs for server hosting, the contractor is entitled to increase the agreed amounts accordingly and to charge the customer at the beginning of the month following such an increase.
12.7 Delay in payment
Adherence to the agreed payment dates is an essential condition for the execution of delivery or fulfilment of the contract by the contractor.
12.7.1 Failure to comply with the agreed payments entitle the contractor to cease ongoing work (e.g. stop using software or hosted servers) and to withdraw from the contract. All associated costs and loss of profit are to be borne by the customer.
12.7.2 In the event of late payment, the customer incurs dunning costs of EUR 40.00 (in words: forty) and default costs, whereby the default interest rate is currently 9.2 (in words: nine point two) percentage points above the base interest rate. If the customer does not meet the payment obligations after going through the dunning process, the claims are handed over to a debt collection agency or a lawyer. The customer bears the costs for any collection procedure.
12.7.3 In the event of non-compliance with two instalments for partial payments, the contractor is entitled to let the deadline come into effect and to make the acceptances due.
12.8 The customer is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints.
12.9 Cancellations by the customer are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right, in addition to the provided services and incurred costs, to charge a cancellation fee in the amount of 30% of the as yet unpaid order value of the overall project.
12.10 In the event of the opening of insolvency proceedings against the customer’s assets or the rejection of an application for opening due to lack of assets, deliveries will only be made against prepayment.
12.11 Claims for damages become statute-barred according to the legal regulations, but not later than one year from the knowledge of the damage and the damaging party.
12.12 Taxes and fees
The customer bears any fees, taxes or other charges.
13. Return and destruction of the software
Upon termination of the right of use, the customer is obliged, at contractor’s option, to return the entire software – including any documents provided – to the contractor or verifiably destroy it or respectively delete programs and data.
This also applies to software that has been changed or linked to other programs.
14. Duration and termination
14.1 The duration of the right of use depends on the respective contract.
The right of use ends at all events:
at the end of the agreed period of use.
at the end of use on the hardware that is the object of the contract. This does not affect the usage fee to be paid in accordance with the contract.
by termination after a possibly agreed minimum service duration and compliance with a three-month notice period, if not otherwise agreed, at the end of the accounting period.
by early termination in the event of serious breaches of contract, if the contractual condition is not restored within a reasonable grace period set in writing.
by early termination when insolvency proceedings are opened against the customer’s assets or when an application to initiate insolvency proceedings is rejected due to insufficient assets. This termination will take effect immediately upon the declaration that the company will not continue. If the company continues, the liquidation will not take effect until 6 months after the bankruptcy proceedings have been opened. If the dissolution is essential to avert serious economic disadvantages of the contractor, it takes place with immediate effect.
14.2 In the event of early termination of the order, the costs and expenses incurred up until then for the activity of the contractor as well as any costs relating to the termination of the order, such as cancellation fees, termination of servers, dismantling costs, etc., are to be replaced by the customer.
15. Miscellaneous provisions
15.1 If the customer exceeds the rights granted to him contractually or if he violates his obligations in accordance with points 3.6 and 13, the contractor is entitled to a contractual penalty, with current usage fees up to five times the annual usage fee or with a one-time usage fee of five times the one-time fee demand. Any further claims for damages remain unaffected.
15.2 Force majeure, industrial disputes, natural disasters and transport locks, failure of Internet or communication systems, as well as other circumstances beyond the contractor’s control, release the contractor from the obligation of delivery for the duration of these circumstances or allow him to change the agreed delivery time.
15.3 Should individual provisions of this contract be or become entirely or partly ineffective or void, this does not affect the effectiveness of the remaining contract.
Instead of the ineffective provision, an effective provision, which corresponds to the meaning and economic purpose of these conditions, shall apply.
15.4 Subsidiary agreements and changes to these conditions must be in writing with an authorised corporate signature. This also applies to the abolition of this formal requirement.
15.5 Place of jurisdiction
The court having jurisdiction at the contractor’s headquarters is solely responsible for deciding all disputes arising from the contract, including those regarding its existence or non‑existence. The contract is subject to Austrian law to the exclusion of UN sales law.
Only the German version of these terms and conditions is legally binding and must be used for interpretation purposes. Any translations are for information purposes only. This provision also applies analogously to any other agreements based on these terms and conditions.