1. SCOPE
1.1. The following general terms and conditions (hereinafter “terms and conditions”) apply to the sale and delivery of hardware and software as well as to services and consulting services provided by thirdmind GmbH (hereinafter “thirdmind”) to a customer (hereinafter “contractual partner”) (hereinafter the “orders” or the “contracts”).
1.2. The subject matter of an order or contract may in particular be its sale and delivery of hardware and accessories creation and delivery of individual software Delivery of standard software or standard software components Maintenance of hardware and software Acquisition of rights to use software Rental of software Commissioning of hardware and software consulting services
1.3. These terms and conditions apply regardless of whether reference is made to them in the order or contract. They also apply to future contracts between thirdmind and the contractual partner, even if they are not expressly agreed again.
1.4. The current version of these terms and conditions at the time of the respective conclusion of the contract always applies. The contractual partner can view and download the terms and conditions on the Internet at www.thirdmind.at. On request, they will be sent to him by thirdmind.
1.5. Deviating or supplementary terms and conditions of the contractual partner, even if known to thirdmind, do not become part of the contract, unless their validity is expressly agreed in writing. By ordering from thirdmind or accepting an offer from thirdmind or by otherwise concluding a contract with thirdmind, the contractual partner waives the application of its own terms and conditions, in particular their defensive clauses.
1.6. If the contract concluded with the contractual partner deviates from these terms and conditions, the provisions of the contract take precedence.
1.7. Thirdmind is entitled to change or supplement these terms and conditions at any time. The amendment comes into force upon notification to the contractual partner and then applies to all contracts concluded from this point in time.
1.8. Thirdmind informs the contractual partner that thirdmind's employees are not authorized to make oral ancillary agreements or give oral assurances that go beyond the content of the respective contract or these terms and conditions.
2. CONCLUSION OF CONTRACT
2.1. Offers and cost estimates from thirdmind are always subject to change and non-binding until the contract is concluded with the contractual partner.
2.2. By placing an order with thirdmind, the contractual partner declares his contract offer to be binding.
2.3. A contract between the contractual partner and thirdmind is concluded when, after receipt of the order, order or offer from the contractual partner, thirdmind sends a written confirmation or delivery to the address last provided by the contractual partner or has begun the actual provision of services.
3. SUBJECT MATTER OF THE CONTRACT
3.1. general
3.1.1. The subject of the contract is the respective purchase, rental, leasing, loan or other legal transaction or the provision of the respective service or the provision of the respective service (service) by thirdmind.
3.1.2. The nature and scope of the services to be provided by thirdmind are governed by the terms of the contract concluded in each individual case.
3.1.3. The employees who provide the services are selected by thirdmind. thirdmind is entitled to replace employed employees with other employees with appropriate qualifications at any time. thirdmind is also entitled to have the services provided by qualified third parties.
3.1.4. Thirdmind reserves the right to change or improve the services contractually agreed with the contractual partner, insofar as such a change or improvement is normal for trade, necessary due to legal requirements or reasonable for the contractual partner taking into account the interests of thirdmind.
3.1.5. Insofar as thirdmind provides free services and services, these may be discontinued at any time without notice.
3.1.6. Insofar as thirdmind acquires copyrights to work results as part of the provision of services, it grants the contractual partner a simple, non-transferable and non-exclusive right of use of the work results in its company after full payment. All other rights to the work results remain with thirdmind.
3.2. Special provisions for third-party software (standard software)
3.2.1. If the contracting party purchases third-party software licensed by thirdmind, he is obliged to comply with the license terms (terms of use) provided to him by thirdmind when using this software. By ordering licensed third-party software, the contractual partner confirms that he is aware of the scope of services and the licensing conditions of this software.
3.2.2. Standard software or standard software components are delivered on a case-by-case basis. In case of doubt, the contractual partner is only granted a time-limited, non-exclusive, non-transferable right of use. Rights to use standard software, which are provided for use against payment of a regular fee, are returned to thirdmind upon termination of the corresponding agreement, but at the latest in the event of delay in payment of the fee despite a written grace period.
3.2.3. With regard to software that thirdmind obtains from third parties and re-licenses to the contractual partner, the contracting parties agree to exclude all warranty and liability, in particular for software deficiencies.
3.2.4. If the contracting party purchases software that is referred to as “public domain”, “freeware” or “shareware” and that was not created by thirdmind, thirdmind assumes no warranty or liability. The contractual partner must comply with the license conditions (terms of use) specified by the respective rights holder for such software.
3.2.5. By providing software for editing, modifying or developing by thirdmind, the contractual partner confirms that it is entitled to carry out the processing, alteration or further development.
3.2.6. The contractual partner fully indemnifies thirdmind from all claims arising from the breach of the above obligations.
3.3. Special conditions for software created by thirdmind (custom software)
3.3.1. In the case of software created individually by thirdmind, the scope of services is defined in the contract by a service description. The delivery includes the program code that can be executed on the specified systems and a program description. Thirdmind retains full rights to the programs and documentation. In case of doubt, the contractual partner is only granted a time-limited, non-exclusive and non-transferable right of use. Rights to use the software that have been granted for use against payment of a periodic fee shall revert to thirdmind upon termination of the corresponding agreement, but at the latest in the event of delay in payment of the fee despite a written grace period.
3.3.2. The contract partner agrees that thirdmind integrates an SDK for crash reporting (fabric or similar) into apps for quality assurance reasons and evaluates the data reported from it accordingly. No personal data is transferred or stored in the process.
3.3.3. The contractual partner acknowledges that minor defects in the software cannot be completely ruled out due to the nature of the subject matter of the contract. Insofar as this is not expressly included as part of the contract, thirdmind assumes no warranty and is not liable that (i) the delivered software meets all of the contractual partner's requirements; or (ii) the delivered software cooperates with other programs of the contractual partner; or (iii) the programs run uninterrupted and error-free; or (iv) all software errors can be corrected.
3.3.4. Thirdmind's warranty and liability includes, in particular, deficiencies caused by improper installation by the contractual partner or third parties, unacceptable operating conditions and atmospheric or static discharges, natural wear and tear, improper operation, modified operating system components, interfaces and parameters, through the use of unsuitable organizational means and data carriers, by Inappropriate processing of the software by the contractual partner or third party as well as through the transportation of Goods were created.
3.3.5. The warranty is limited to reproducible (continuously repeatable) deficiencies in the program function.
3.3.6. If hardware and software are delivered by thirdmind at the same time, any deficiencies in the software do not entitle the contractual partner to withdraw even with regard to the contract on which the use or delivery of the hardware is based.
3.4. Special obligations of the contract partner
3.4.1. The contractual partner is obliged to provide thirdmind with all data and information required to provide the contractual services. thirdmind is not obliged to check this information for its logical content (accuracy, completeness, etc.). If additional expenses arise for thirdmind as a result of incorrect or incomplete information or for other reasons for which the contractual partner is responsible, this will be charged separately by thirdmind at the applicable hourly rates.
3.4.2. The contractual partner is obliged to provide thirdmind with all systems required for the provision of the contractual services, such as interfaces, servers and databases, at the required time and to ensure the availability of these systems for the entire period in which they are required. If thirdmind incur additional costs as a result of faulty or unavailable systems, this will be billed separately by thirdmind at the applicable hourly rates.
3.4.3. The contractual partner is obliged to carry out interim project approvals, such as the approval of drafts, designs and interim results, at times specified by thirdmind.
3.4.4. If the service is provided in the premises of the contractual partner, the contractual partner must provide the spatial and technical infrastructure required for the provision of the service at thirdmind's request.
3.4.5. If a service by thirdmind cannot be provided or cannot be provided on time for reasons for which the contractual partner is responsible, in particular because the contractual partner has failed to comply with its obligations to cooperate, has not reported deficiencies or faults in good time or has not met agreed deadlines, the contractual partner must reimburse the additional costs caused as a result. In addition, in such a case, the agreed deadlines for the provision of services will be extended in accordance with the delay for which the contractual partner is responsible.
4. DELIVERY/ACCEPTANCE
4.1. The date of completion of the services to be provided by thirdmind or the delivery date for the delivery of hardware and software is governed by the terms of the contract concluded in each case.
4.2. All circumstances over which thirdmind has no influence, such as operational disruptions or restrictions in the supply of production material to thirdmind or a sub-contractor, are equal to force majeure. The occurrence of such circumstances reasonably extends the agreed performance periods and does not entitle the contractual partner to withdraw from the contract or to assert other claims of any kind against thirdmind.
4.3. Official and other third-party permits required for delivery or provision of services must be obtained from the contractual partner. If such approvals are not received in good time, the deadlines agreed for the provision of services shall be extended accordingly; in this case, the contractual partner is not entitled to withdraw from the contract or to assert other claims, of any kind, against thirdmind.
4.4. If delivery or provision of services becomes impossible due to the circumstances set out in Section 4.2 and Section 4.3, thirdmind is entitled to withdraw from the contract without the contractual partner being entitled to any claims of any kind. This also applies in the event that the above circumstances occur during an existing delay.
4.5. Changes requested by the contractual partner after the order has been placed shall extend the agreed performance deadlines accordingly and will be invoiced separately by thirdmind at the applicable hourly rates.
4.6. In the case of orders that include several units, thirdmind is entitled to make partial or advance deliveries and to invoice each individual unit or service after delivery.
4.7. The contractual partner undertakes to accept the services immediately after delivery and to complete them within two weeks. If discrepancies between the agreed performance and the project result are identified in the course of acceptance, these must be listed in tabular form by the contractual partner. Thirdmind is responsible for setting the deadline to eliminate the deficiencies identified as part of the acceptance process. Delays in acceptance for which the contractual partner is responsible entitle thirdmind to immediately pay the outstanding amount.
4.8. Thirdmind provides all services from headquarters or branch. Dispatch is always carried out only on order and at the expense and risk of the contractual partner. At the request of the contract partner, thirdmind will take out transport insurance for the goods at the expense of the contract partner.
5. PRICES/TERMS OF PAYMENT
5.1. The prices to be paid by the contractual partner result from the respective contract. Unless otherwise stated in the contract, the prices apply from the place of business or branch and do not include sales tax and other duties, packaging and shipping costs and installation costs.
5.2. In addition to the prices stated in the contract, the contractual partner must reimburse thirdmind all cash expenses and expenses (e.g. mileage allowance, tickets, overnight costs) incurred in fulfillment of the contract at the applicable rates. Travel time is considered working time.
5.3. The fees charged regularly increase to the extent of the change between the index number of the consumer price index 2014 (CPI 2014) announced for years of the reference year and the CPI 2014 index number announced for years of the previous year, with effect from the first of each calendar year. The starting point is the index figure announced for January 2014. thirdmind may waive an increase in remuneration due to the index change during a calendar year, but this does not affect the admissibility of future adjustments.
5.4. If the contractual partner requests services outside normal business hours, surcharges of 100% will be charged for these services at the hourly rates agreed in the contract:
5.5. Unless otherwise agreed in the contract, invoices issued by thirdmind must be paid in full within 14 days from the date of the invoice. A payment is considered to have been made on the day that Thirdmind is able to dispose of it. For partial invoices, the payment terms set out for the entire order apply accordingly.
5.6. The offsetting of claims made by the contractual partner against thirdmind, the withholding of payments due to counterclaims made by the contractual partner but not recognized by thirdmind, and any withholding of contractual services by the contractual partner are excluded.
6. LATE PAYMENT
6.1. In the event of default in payment, thirdmind is entitled, without prejudice to its other rights, (i) to postpone the performance of its own obligations until this payment or other service has been achieved, (ii) to make use of a reasonable extension of the delivery period, (iii) to submit all outstanding claims from this or other transactions with the contractual partner, (iv) for outstanding amounts from to charge default interest in the amount of 12% p.a. to the respective liability, unless Thirdmind has additional costs proves, and (v) to withdraw from the contract in the event of failure to comply with a reasonable period of grace.
6.2. If installments have been agreed upon, thirdmind is entitled to claim lost time if payment of the second installment is not made on time and to pay the entire outstanding invoice amount.
6.3. In the event of late payment, the contractual partner is obliged to reimburse thirdmind for reminder and collection expenses incurred by a lawyer or collection agency as well as all other additional costs associated with the late payment.
7. RETENTION OF TITLE
7.1. Delivered goods and software remain the unrestricted property of thirdmind until full payment of all claims by thirdmind arising from the business relationship with the contractual partner. The contractual partner is not entitled to pledge the reserved goods or to transfer them as security.
7.2. In the event of late payment, impending suspension of payment or foreclosure against the contractual partner, thirdmind is entitled to dismantle and/or otherwise take back the reserved goods without this constituting a withdrawal from the contract. The contractual partner is obliged to surrender.
7.3. In the event of seizure or other access by third parties to the reserved goods, the contractual partner is obliged to point out the ownership of thirdmind and to notify thirdmind immediately. All costs that thirdmind incur as a result of such third-party access are borne by the contractual partner.
8. WARRANTY
8.1. In principle, thirdmind only guarantees that the delivered goods meet the contractually agreed specifications at the time of delivery.
8.2. The warranty period is 12 months from delivery or provision of services. The burden of proof for this lies with the contractual partner.
8.3. The contractual partner must report any identifiable deficiencies immediately after delivery, hidden defects immediately after recognition. The complaint must be made in writing with a detailed description of the defect. The contractual partner bears the burden of proof that the complaint is timely. If a complaint is not submitted in due time, the goods are irrevocably considered approved.
8.4. If a complaint is submitted in due time, thirdmind is initially obliged to rectify the defect. If the repair fails or is uneconomical from thirdmind's point of view, a corresponding price reduction must be made. A conversion claim by the contractual partner is excluded.
8.5. The contractual partner must always prove that the service provided was defective at the time of handover.
8.6. Recourse claims against thirdmind in accordance with Section 933b of the Austrian Civil Code are excluded.
9. LIABILITY
9.1. With the exception of personal injury, thirdmind is only liable for damage in the event of intent or gross negligence.
9.2. Thirdmind's liability for loss or damage to data or information, business interruption damage, lost profit, indirect damage, frustrated expenses and other subsequent damage is excluded in any case, to the extent permitted by law.
9.3. Claims for damages by the contractual partner against thirdmind expire one year after delivery or provision of services.
9.4. Any liability of thirdmind towards the contractual partner is in any case limited to the amount of the order value.
9.5. Any recourse claims made against thirdmind by the contractual partner or third parties under the title of product liability within the meaning of the Product Liability Act (PHG) are excluded, unless the person entitled to recourse proves that the fault was caused in the sphere of thirdmind or was at least grossly negligent.
10. DATA PROTECTION/DATA SECURITY
10.1. Thirdmind is entitled to store, process and transfer personal data in compliance with the relevant data protection regulations (in particular Data Protection Act 2000, §§ 92 ff TKG 2003) as part of contract execution and for the purposes arising from the contract. The contractual partner cannot derive any legal consequences from the transfer of data due to a legal obligation.
10.2. Thirdmind takes the state-of-the-art, industry-standard data security measures required by data protection law. Thirdmind does not assume any further liability.
10.3. The contractual partner agrees that thirdmind uses the traffic data relating to him for the purposes of contract processing, consulting, development and marketing of its own services, needs analysis and network expansion planning. This consent can be withdrawn at any time.
10.4. In addition, thirdmind will automatically process the data within the framework of legal provisions and delete it after termination of the contract relationship, unless further storage is necessary to fulfill thirdmind's legal obligations. The contract partner allows thirdmind to include its name or company in a list of references.
10.5. The contractual partner acknowledges that thirdmind is not obliged or authorized to store and retrieve certain content data (from third parties) for the contractual partner for an indefinite period of time. If the contractual partner does not retrieve such data within three working days, thirdmind assumes no liability for continued retrieval.
10.6. thirdmind will take all technically possible and reasonable measures to protect the data it stores. Thirdmind is not liable if third parties nevertheless manage to obtain the data unlawfully. In order to ensure the necessary protection of data, the contractual partner is obliged to keep passwords secret. He is liable for all damage arising from the breach of this obligation. Unless otherwise agreed, the contractual partner is responsible for securing its own data. thirdmind recommends that the contractual partner use a firewall and a virus wall system.
11. OTHER PROVISIONS
11.1. Salvatory clause:
Should individual provisions of the terms and conditions be or become invalid, invalid and/or unenforceable, this shall not affect the effectiveness, validity and/or enforceability of the remaining provisions of the terms and conditions. The invalid provision must be replaced by a valid, valid or enforceable provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to the supplementary contract interpretation in the event of contract gaps.
11.2. Confidentiality:
The contractual partner is obliged to keep the conclusion of the contract confidential. thirdmind has the right to name the contractual partner as a customer on thirdmind's homepage and in other advertising material with company wording, logo and website. References from the contractual partner to business connections to thirdmind are only admissible with the written consent of thirdmind. The contractual partner allows thirdmind to use its name and the description and description of the goods and services delivered as part of the cooperation in press releases and publications for advertising purposes. The contractual partner is obliged to keep all non-obvious commercial or technical details known to him as a result of the business relationship with thirdmind strictly confidential as a business secret of thirdmind. Employees and other vicarious agents must be required accordingly by the contractual partner.
11.3. Prohibition of solicitation:
During the term of the contract and for a period of 12 months thereafter, the contractual partner undertakes not to directly or indirectly employ or recruit employees of the contractual partner or other third parties who are used to provide thirdmind's services. In each case of infringement of this point, the contractual partner submits to thirdmind a contractual penalty amounting to an annual gross salary of the employee. The assertion of damage exceeding this contractual penalty remains unaffected.
11.4. Succession of law:
thirdmind is entitled to transfer rights and obligations arising from a contractual relationship with the contractual partner to companies in which thirdmind has at least a 50% stake. The contractual partner has no right of termination as a result of such a transfer.
11.5. Written form:
Statements, notifications, etc. vis-à-vis thirdmind must be made in writing and the original signature in order to be legally effective. Agreements to waive this formal requirement must also be made in writing. Additional oral agreements are invalid.
11.6. Place of fulfilment/place of jurisdiction/applicable law:
The place of fulfilment is Vienna. The competent court in Vienna has exclusive jurisdiction to decide all disputes arising from the contract between thirdmind and the contractual partner, including those relating to the existence or non-existence of the contract. The contract is subject to Austrian law to the exclusion of referral standards and the UN sales law.
11.7. Address changes:
The contractual partner must immediately announce changes to its business address. Documents are considered to have been received by the contractual partner when they have been sent to the address last announced.