1.1. The following general terms and conditions (hereinafter referred to as "GTC") shall apply (i) whenever CyberGrid, with offices at Bayerngasse 3/ 1 / Top 5, 1030 Vienna, engages in legal transactions as a seller of goods/products and/or provider of services, or (ii) whenever these GTC are referred to in any specific contract on the delivery of goods and/or services, or in any other way that has been agreed upon with a Customer (hereinafter “Customer”) of CyberGrid.
1.2. All goods delivered and/or services provided (hereinafter referred to as “Services” or “Project“) by CyberGrid shall be defined in an offer and/or an individual contract (i.e., a SLA) (hereinafter collectively referred to as “Agreement”). A legally valid and binding agreement concluded between CyberGrid and a Customer (hereinafter also referred to as “Parties” or “Contractual Partners”) shall contain an agreement on the (i) price for all services and goods provided (ii) scope of goods delivered and/or services provided and (iii) an executable time schedule.
1.3. A Customer's General Terms and Conditions only take effect if they are approved in writing by CyberGrid and do not conflict with these GTC. No behavior, such as the receipt of products and/or services, payment, etc., shall be construed as CyberGrid's consent to the Customer's General Terms and Conditions.
1.4. In case of any amendments of these GTC, CyberGrid will inform the customer in writing via e-mail sent to the last e-mail address of which the Customer has informed CyberGrid in writing. CyberGrid shall be entitled to regard the customer to have accepted all modifications/amendments of these GTC, if no (reasoned) objection is made in writing via mail to firstname.lastname@example.org, within 14-days upon notification of the Customer.
1.5. Clauses worded otherwise in individual Agreements concluded between CyberGrid and a Customer have precedence over these GTC.
2. DUTY TO COOPERATE
2.1. In particular, the customer shall cooperate as stipulated in the Agreement by delivering all required preliminary work, preliminary products or aids and appliances necessary for CyberGrid to provide all Services as specified in the Agreement. Further, the Customer shall support CyberGrid and take all measures free of charge with all means necessary in order for CyberGrid to be able to duly perform its obligations under the Agreement.
2.2. The Customer shall provide all information, data and documents necessary for the execution of the Project in the form requested by CyberGrid, on the fixed dates and at their own cost, and shall support CyberGrid in problem analysis and emergency maintenance, the coordination of data processing orders and the coordination of services if requested. Changes in work processes of the Customer, which might cause changes in the services to be rendered by CyberGrid for the Customer, shall require prior coordination with CyberGrid regarding their technical and commercial effects.
2.3. Should the services be rendered on-site on the premises of the Customer, the Customer shall, free of charge, provide the net components, connections, supply current incl. peak voltage equalization, emergency power supply, floor space for equipment, working spaces as well as infrastructure in the required quantity and quality (e.g. air conditioning) necessary for the rendering of services by CyberGrid. In any case, the Customer shall be responsible for adhering to the prerequisites requested by the respective manufacturer for the operation of hardware. Similarly, the Customer shall provide room and building security, such as protection against water, fire and unauthorized access. The Customer shall be responsible for special security precautions (e.g. safety cells) on their premises. The Customer shall not be entitled to give employees of CyberGrid instructions, regardless of nature, and shall exclusively inform the contact person named by CyberGrid about all needs pertaining to the rendering of services.
2.4. The Customer shall store all data and information given to CyberGrid at their premises as well, so that these may be reconstructed at any time in case of loss or damage.
2.5. Should the Customer not fulfil its obligations of cooperation by the agreed dates or in the agreed scope, the services rendered by CyberGrid shall nevertheless be considered as rendered according to contract in spite of possible limitations. Schedules for the services to be rendered by CyberGrid shall be postponed to an adequate extent. The Customer shall separately reimburse additional expenditures and/or costs hereby incurred by the Contractor at the respective rates of the Contractor.
2.6. The Customer shall ensure that their employees and the third parties affiliated to them handle the appliances and technologies used by CyberGrid as well as, if applicable, assets left to the Customer with care. The Customer shall be liable to CyberGrid for any damage.
2.7. CyberGrid assumes that all documents, information and data (i.e., preliminary work, preliminary products or aids and appliances) provided by the Customer are correct, valid and can be used for the realization of the Project. CyberGrid shall not have any inspection obligations in this regard or bear any responsibilities.
3. RENDERING OF SERVICES
3.1. CyberGrid shall deliver all Services in accordance with the Agreement concluded with the Customer. Delivery dates and/or delivery periods of specified goods and services provided by CyberGrid shall only be binding if confirmed by CyberGrid in writing.
3.2. The Customer may request amendments to the scope of Services at any time. However, a requested change shall include a precise description of said change, the reasons for the change and its impact on the schedule and the costs in order to provide the other party with the opportunity to conduct an assessment. A change request shall only be legally binding if signed by CyberGrid and the Customer.
CyberGrid shall be entitled to commission third parties with the performance of Services, in whole or in part.
4.1. CyberGrid shall observe confidentiality with regard to all information and documents, which are made available by the Customer to CyberGrid in accordance with the Agreement. In particular, all contact details of third parties made available to CyberGrid by the Customer shall solely be used for purposes relating to the performance of the Agreement and shall be returned or destroyed upon completion or after the term of the Agreement.
4.2. The Customer shall observe strict confidentiality with regard to all information and documents received from CyberGrid, particularly business and trade secrets, and shall under no circumstances make any of the information or documents available to third parties. The Customer shall verifiably impose this obligation on all employees and any third parties commissioned by the Customer.
4.3. The Customer shall use the Services rendered by CyberGrid solely for business purposes. Publication of the Services performed by CyberGrid shall only be permissible after having obtained written permission from CyberGrid.
4.4. At CyberGrid's or the Customers justified request, all documents must be immediately returned.
4.5. The Customer agrees that CyberGrid may inform its subcontractors of the contents of such documents.
5. DATA PROCESSING
5.1. CyberGrid collects and processes different types of data (particularly factual data, contact data, content data, usage data and meta data).
6. REMUNERATION, INVOICING, TERMS OF PAYMENT & DEFAULT
6.1. In case a lump sum is agreed upon by Agreement for all Services to be provided by CyberGrid, all individual tasks stipulated in the Agreement shall be included. In case, additional work tasks need to be performed by CyberGrid, in particular if the preliminary work, preliminary products or aids and appliances provided by the Customer need to be prepared, refurbished or edited CyberGrid shall be entitled to bill all excess work on an hourly basis, according to actual staff and material costs at the usual prices of CyberGrid. Furthermore, this shall particularly include services rendered outside of the usual business hours of CyberGrid, the analysis and rectification of incidents and errors caused by improper use or operation by the Customer or other circumstances, which cannot be attributed to the CyberGrid. Additionally, training services shall not be included in the services on principle and shall require a separate agreement.
6.2. Any time-based remuneration agreed upon shall be based on the assumption of an eight-hour workday and a five-day week. Time spent traveling shall be deemed working time.
6.3. All figures stated shall be considered net amounts. All applicable taxes shall be borne by the Customer.
6.4. Any travel costs incurred by CyberGrid in the process of duly performing its Services shall be invoiced to the customer separately (compensation).
6.5. Remuneration and compensation shall be due and payable within two weeks of receipt of the respective invoice.
6.6. In the case of payments via third parties, in particular within the framework of del credere agreements, the goods shall only be deemed to have been paid for when the payment has been received by CyberGrid. If several invoices are outstanding, payments on interest due shall then be set off against the older invoice in each case. Cash discounts are inadmissible.
6.7. In case the Customer is in default on payment for a period exceeding 2 (two) months, and CyberGrid has claimed the outstanding invoices, then CyberGrid shall be entitled to terminate the Agreement with immediate effect.
6.8. In case CyberGrid is in default of due performance of Services, the customer shall only be entitled to claim compensation for any damage caused if CyberGrid or third persons attributable to CyberGrid intentionally or gross negligently caused the default.
7. IP, EXPLOITATION RIGHTS
7.1. CyberGrid shall remain the sole owner of any and all exploitation rights, copyrights, utility patents, patents and designs existing in relation to the Services performed by CyberGrid.
7.2. Furthermore, CyberGrid reserves all rights, including intellectual property rights, regarding all documents comprising an Agreement, including e.g. specifications, drawings, sketches, catalogues, etc.
7.3. Insofar as CyberGrid allocates software products to the Customer or the Customer is enabled to use software products within the framework of services, the Customer shall be entitled to the non-exclusive, non-transferrable, not sub-licensable right to use the software in unaltered form for the duration of the contract.
7.4. For the use of software products in a network, each simultaneous user shall require its own license. For the use of software products on standalone computers, each PC shall require its own license.
7.5. The license conditions of the respective software manufacturer shall prevail over the provisions of this Clause where CyberGrid allocates third-party software products to the Customer.
7.6. If no separate agreement is made, no further rights to software products shall be transferred to the Customer. This shall not affect the rights of the Customer as per Sections 40(d), 40(e) of the Austrian Copyright Act.
7.7. Documents allocated to the Customer by CyberGrid, particularly software product documents, shall not be copied or in any way distributed in exchange for money or free of charge.
8. ACCEPTANCE & WARRANTY
8.1. CyberGrid warrants that it will perform the Services where required with reasonable care and skill and that the Services will correspond with their specification at the time of delivery and will be free from defects in material and workmanship under normal use.
8.2. The Services performed by CyberGrid shall be deemed accepted without objection by the customer, unless the customer submits a written notice of defects in the form of a detailed description of the defects claimed within 4 (four) weeks of delivery / of rendering the respective Services.
8.3. The customer shall in written form inform CyberGrid of any CyberNoc software defects within 4 four weeks of becoming aware of them by submitting a detailed description of the CyberNoc software defects claimed. Warranty claims shall be excluded if six months from the time of acceptance have elapsed. The presumption that a CyberNoc software defect existed if it emerges within six months of acceptance according to § 924 ABGB (Austrian General Civil Code) shall be herewith excluded.
8.4. If the delivered Services are defective then the Customer shall be entitled to demand subsequent performance in the form of rectification of the defect or delivery of a defect-free item. CyberGrid shall have the right to choose the type of subsequent performance. If the supplementary performance fails, the Customer is entitled to reduce the purchase price or to withdraw from the contract if the legal requirements are met.
8.5. A prerequisite for any warranty rights is that the Customer properly fulfils all inspection and complaint obligations owed in accordance with § 377 of the Austrian Commercial Code (UGB).
9.1. CyberGrid shall only be liable for damage caused intentionally or gross negligently. This shall also apply mutatis mutandis to damage caused by third parties brought in by CyberGrid. In case of bodily injuries caused by CyberGrid, CyberGrid shall be liable without limitation.
9.2. CyberGrid shall not be liable for lost profits, indirect damage or any other consequential damage. Damages shall be barred from being claimed if six months have elapsed from the time of having become aware of the damage, the tortfeasor, and the facts relating to the damage.
9.3. Claims for damages shall lapse according to legal provisions, however, at the latest after 6 (six) months starting from the knowledge of the damage and the person responsible for this.
9.4. Should CyberGrid fulfil work with the assistance of a third party and any guarantee and/or liability claims arise against this third party therefrom, CyberGrid shall cede those claims to the Customer.
9.5. Should data backup be expressly agreed upon as a service, liability for the loss of data shall not be excluded, but restoration of the data shall be limited to a maximum of 10% of the total order sum per case of damage, however, with an overall maximum of EUR 15,000. Further claims for damages and guarantees of the Customer than those stipulated in these GTC shall be excluded, regardless of legal basis.
9.6. Insofar and for as long as obligations cannot be fulfilled in due time or in due form due to force majeure, e.g. war, terrorism, natural disasters, fire, strikes, lockouts, embargos, state intervention, power cuts, cancellation of transport, telecommunication network and/or data lines blackouts, legislative changes after conclusion of contract that have an effect on services, or other unavailability of products, this shall not pose a breach of contract. CyberGrid shall not be liable for damage caused by force majeure.
9.7. Any failures in connection with the deliverance of preliminary work, preliminary products or aids and appliances provided by the Customer shall not be attributable to CyberGrid.
9.8. In case CyberGrid is not able to perform its services due to a reason that lies with the Customer, the Customer shall have no right to withhold any payments even if CyberGrid provides no service and/or all Services provided so far shall nevertheless be considered as rendered according to contract in spite of possible limitations.
10. TERM OF CONTRACT & TERMINATION
10.1. These GTC shall enter into force upon signing of an Agreement by the contractual partners and shall end on the date stated in the Agreement.
10.2. Each party shall be entitled to terminate the Contract at the earliest at the end of the minimum term agreed upon in the contract, by means of a letter sent by registered post.
10.3. Each contractual partner shall be entitled to terminate the contract prematurely and without notice in case of an important reason by means of a letter sent by registered post. An important reason shall particularly be in the event that the other contractual partner violates obligations arising from the contract in spite of a written warning or threat of termination, if the other contractual partner has applied for or has begun insolvency proceedings or if such proceedings have been declined due to insufficiency of assets or the services of the other contractual partner will be hindered or impeded for more than six months due to force majeure.
10.4. Furthermore, CyberGrid shall be entitled to prematurely terminate the contract, should crucial parameters of service provision have changed and CyberGrid therefore cannot be expected to continue the services for economic reasons.
10.5. Upon termination of contract, the Customer shall immediately return all documents and files received from CyberGrid and vice versa.
10.6. In case the Contract is terminated with immediate effect, CyberGrid shall be entitled to charge the customer for the work done until that point in time. And in case of early termination by the Customer, CyberGrid shall be entitled to claim a lump sum amounting to 50% of the agreed remuneration from the customer as damages for Services not performed. Any other claims on the part of CyberGrid shall remain unaffected by this provision.
10.7. Termination for cause of the Contract shall be communicated to the other party by registered letter sent to the address stated in the Agreement.
11.1. This Contract shall be considered conclusive; oral side agreements do not exist. Any prior agreements or contracts shall become invalid upon this Contract coming into force.
11.2. The Customer shall not have the right to novate, assign pledge or transfer the rights and/or obligations under an individual contract including the assignment or transfer of such individual contract as a whole without prior written approval by CyberGrid.
11.3. All amendments or supplements to this Contract shall be made in writing in order to be valid. This shall also apply to the cancellation of this form requirement.
11.4. Austrian law shall exclusively govern this Contract - even in case the mandate is implemented abroad - with the exclusion of the conflict of law rules pursuant to International Private Law, the Rome I Regulation, and the CISG (Vienna Convention).
11.5. All disputes arising out of or in connection with this Contract, including disputes regarding the conclusion and validity of this Contract, shall exclusively be settled before the competent Court in Vienna, the Commercial Court of Vienna.
11.6. In case individual provisions of this Contract are or become null and void, invalid, or unfeasible, this shall not affect the validity of the remaining provisions. The provision which has become null and void, invalid, or unfeasible, shall be replaced by a provision which closest corresponds in terms of the economic intention behind the provision that has become null and void, invalid, or unfeasible. The same shall apply to a lacuna in this Contract.
11.7. In case individual provisions of this contract are ineffective or unenforceable, this will not affect the effectiveness or enforceability of the other parts of this contract. The parties to this contract agree to replace any such ineffective provision by another provision that serves best the economic purpose originally pursued by this ineffective provision and this contract.
11.8. The Customer shall not or via third parties headhunt employees working for CyberGrid in the provision of services during the term of contract and after termination of contract. The Customer undertakes to pay a contractual penalty to CyberGrid in case of infringement, to the amount of twelve times the most recent monthly gross salary of the employee concerned, however, at least the salary of salaried staff of businesses in the area of services in automatic data processing and IT at the experienced level for special tasks (ST2) according to the collective agreement.