General Terms and Conditions

§ 1 General

1.1. The Contractor provides the Client with services in the field of information technology and the operation of hardware and software components in compliance with the attached Service Level Agreements (SLAs), which form an integral part of this contract.

1.2. These General Terms and Conditions apply to all present and future services provided by the Contractor to the Client, even if no express reference is made to them when an individual contract is concluded. Terms and conditions of the Client apply only if they have been acknowledged by the Contractor in writing.

§ 2 Scope of services

2.1. The precise scope of the Contractor’s services is set out in the respective SLA agreed with the Client. Unless otherwise agreed, the Contractor provides the services during the Contractor’s usual business hours as defined in the SLA. The Contractor shall ensure the provision and availability of the services in accordance with the respective SLA.

2.2. The facilities and technology used by the Contractor to provide the services are based on the Client’s qualitative and quantitative service requirements as determined on the basis of the information provided by the Client. Should new requirements of the Client necessitate a change to the services or to the technology used, the Contractor will submit a corresponding offer at the Client’s request.

2.3. The Contractor is entitled to change the facilities used to provide the services at its own discretion, provided that no impairment of the services is to be expected.

2.4. Services rendered by the Contractor which the Client requests beyond the agreed scope of services shall be remunerated by the Client according to actual personnel and material expenditure at the rates applicable at the Contractor from time to time. This includes in particular services outside the Contractor’s usual business hours, as well as the analysis and elimination of malfunctions and errors caused by improper handling or operation by the Client or by other circumstances for which the Contractor is not responsible. Likewise, training services are generally not included in the services and require a separate agreement.

2.5. Where the Contractor arranges third-party services at the Client’s request, such contracts are concluded exclusively between the Client and the third party, subject to that third party’s terms and conditions. The Contractor is responsible only for the services it renders itself.

2.6. We expressly point out that an accessible (barrier-free) design within the meaning of the Austrian Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz - BGStG) is not included in the offer unless it has been separately and individually requested by the Client. If an accessible design has not been agreed, it is incumbent upon the Client to review the service for its admissibility with regard to the Federal Disability Equality Act.

§ 3 Client’s duties to cooperate and to provide resources

3.1. The Client undertakes to support all measures required for the provision of the services by the Contractor. The Client further undertakes to take all measures necessary for the performance of the contract that are not included in the Contractor’s scope of services.

3.2. Where the services are provided on site at the Client’s premises, the Client shall provide free of charge the network components, connections, power supply including peak-voltage compensation, emergency power supplies, floor space for equipment, workstations and infrastructure required for the provision of the services by the Contractor, in the necessary scope and quality (e.g. air conditioning). In any event, the Client is responsible for complying with the requirements stipulated by the respective manufacturer for the operation of the hardware. The Client is likewise responsible for the security of rooms and buildings, including protection against water, fire and access by unauthorised persons. The Client is itself responsible for special security precautions (e.g. security cells) on its premises. The Client is not entitled to issue instructions of any kind to the Contractor’s employees and shall address all requests concerning the provision of services exclusively to the contact person named by the Contractor.

3.3. The Client shall provide, on the agreed dates and at its own expense, all information, data and documents required by the Contractor to carry out the assignment, in the form requested by the Contractor, and shall support the Contractor on request in problem analysis and fault elimination, in the coordination of processing orders and in the alignment of the services. Changes to the Client’s workflows that may cause changes to the services to be provided by the Contractor for the Client require prior coordination with the Contractor with regard to their technical and commercial implications.

3.4. Unless expressly included in the Contractor’s scope of services, the Client shall arrange for network connectivity at its own risk and expense.

3.5. The Client is obliged to treat as confidential the passwords and log-ins required to use the Contractor’s services.

3.6. The Client shall additionally retain its own copies of the data and information handed over to the Contractor, so that it can be reconstructed at any time in the event of loss or damage.

3.7. The Client shall fulfil all of its duties to cooperate in such good time that the Contractor is not hindered in providing the services. The Client shall ensure that the Contractor and/or third parties commissioned by the Contractor obtain the access to the Client’s premises required to provide the services. The Client is responsible for ensuring that the employees of its affiliated companies involved in the performance of the contract, or third parties commissioned by it, cooperate accordingly in the performance of the contract.

3.8. If the Client fails to fulfil its duties to cooperate on the agreed dates or to the intended extent, the services rendered by the Contractor shall nevertheless be deemed to have been rendered in conformity with the contract, despite any resulting limitations. Schedules for the services to be provided by the Contractor shall be postponed to a reasonable extent. The Client shall separately remunerate the additional expenditure and/or costs thereby incurred by the Contractor at the rates applicable at the Contractor from time to time.

3.9. The Client shall ensure that its employees and third parties attributable to it handle the facilities and technologies deployed by the Contractor, as well as any assets made available to it, with due care; the Client is liable to the Contractor for any damage.

3.10. Unless otherwise agreed, resources provided and cooperation rendered by the Client are free of charge.

§ 4 Personnel

4.1. Where, under the agreements made between the contracting parties, employees of the Client are taken on by the Contractor, a separate written agreement shall be concluded in this respect.

§ 5 Change requests

5.1. Either contracting party may request changes to the scope of services at any time (“change request”). A requested change must, however, set out a precise description of the change, the reasons for it, its impact on scheduling and the costs, so as to give the addressee of the change request the opportunity to make an appropriate assessment. A change request becomes binding only upon legally valid signature by both contracting parties.

§ 6 Defective performance

6.1. The Contractor undertakes to provide the services in conformity with the contract. If the Contractor does not provide the services at the scheduled times or provides them defectively, i.e. with material deviations from the agreed quality standards, the Contractor is obliged to begin remedying the defects immediately and, within a reasonable period, to render its services properly and free of defects, either by repeating the affected services or by carrying out the necessary rectification work, at its own option.

6.2. If the defectiveness is attributable to resources provided or cooperation rendered by the Client, or to a breach of the Client’s obligations under clause 3.9, any obligation to remedy defects free of charge is excluded. In such cases the services rendered by the Contractor shall nevertheless be deemed to have been rendered in conformity with the contract, despite any resulting limitations. At the Client’s request the Contractor will remedy the defect for a fee.

6.3. The Client shall support the Contractor in remedying defects and shall provide all necessary information. Defects that occur must be reported by the Client to the Contractor without delay in writing or by e-mail. The Client shall bear the additional expenditure incurred in eliminating the fault as a result of a delayed report.

6.4. The provisions of this clause apply mutatis mutandis to any deliveries of hardware or software products by the Contractor to the Client. The warranty period for such deliveries is 6 months from handover. Section 924 of the Austrian Civil Code (ABGB), “presumption of defectiveness”, is excluded by mutual agreement. For any third-party hardware or software products supplied to the Client by the Contractor, the respective warranty conditions of the manufacturer of those products take precedence over the provisions of this clause. The Contractor retains title to all hardware and software products supplied by it until payment has been made in full.

§ 7 Contractual penalty

7.1. The Contractor is obliged to comply with the performance levels and restoration times by priority stated in the SLA. Should the Contractor exceed the time limits for restoration stated in the SLA, the Contractor shall pay the Client penalties for each commenced hour of the overrun until actual restoration (fulfilment), as set out in the SLA:

The above penalties per year are limited in amount to 20 % of the total annual remuneration. The assertion of any claim for damages going beyond this is excluded, except in cases of intent or gross negligence.

Should overruns triggering penalties occur, these must be brought to the Contractor’s attention in writing without delay.

§ 8 Liability

8.1. The Contractor is liable to the Client for damage demonstrably caused by its fault only in cases of gross fault. This applies mutatis mutandis to damage attributable to third parties engaged by the Contractor. In the case of culpable personal injury, the Contractor is liable without limitation.

8.2. Liability for indirect damage - such as loss of profit, costs associated with business interruption, loss of data or third-party claims - is expressly excluded.

8.3. Claims for damages become time-barred in accordance with the statutory provisions, but at the latest upon expiry of one year from becoming aware of the damage and of the party causing it.

8.4. Where the Contractor renders the work with the assistance of third parties and warranty and/or liability claims against those third parties arise in this connection, the Contractor assigns those claims to the Client. In such a case the Client shall have primary recourse to those third parties.

8.5. If data backup is expressly agreed as a service, liability for loss of data is, by way of derogation from clause 8.2, not excluded, but is limited, in respect of the restoration of the data, to a maximum of 10 % of the order value per instance of damage, and to a maximum of EUR 15,000.00 in total. Warranty and damages claims of the Client going beyond those stated in this contract - on whatever legal basis - are excluded.

§ 9 Remuneration

9.1. The remuneration and conditions payable by the Client are set out in the contract. Statutory value added tax is charged in addition.

9.2. Travel times of the Contractor’s employees count as working time. Travel times are remunerated at the agreed hourly rate. The stated rates change in accordance with the price adjustment clause in clause 9.5. In addition, travel costs and any overnight accommodation costs are reimbursed by the Client on the basis of actual expenditure. Travel and incidental costs are reimbursed against presentation of receipts (copies).

9.3. The Contractor is entitled at any time to make the provision of services conditional upon the Client making advance payments or providing other security in an appropriate amount.

9.4. Unless otherwise agreed in the contract, one-off remuneration is invoiced after the services have been rendered, and recurring remuneration quarterly in advance. Invoices issued by the Contractor, including value added tax, are payable at the latest 14 days from receipt of invoice, without any deduction and free of charges. The payment terms laid down for the overall order apply analogously to partial invoices. A payment is deemed to have been made on the day on which the Contractor can dispose of it. If the Client defaults on its payments, the Contractor is entitled to charge statutory default interest and all costs necessary for collection. Should the Client’s default exceed 14 days, the Contractor is entitled to suspend all services. The Contractor is furthermore entitled to declare the remuneration for all services already rendered immediately due and payable, irrespective of any payment periods.

9.5. Recurring remuneration is based on the collective-agreement salary of an employee of undertakings in the field of services in automatic data processing and information technology, in the experience level for special activities (ST2).

9.6. The Client may set off only against a counterclaim that has been acknowledged by the Contractor or established by final judgment. The Client has no right of retention.

9.7. All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, are borne by the Client. Should the Contractor be held liable for such levies, the Client shall indemnify and hold the Contractor harmless.

§ 10 Force majeure

10.1. Insofar and for as long as obligations cannot be fulfilled on time or properly as a result of force majeure - such as war, terrorism, natural disasters, fire, strike, lock-out, embargo, acts of public authority, failure of the power supply, failure of means of transport, failure of telecommunications networks or data lines, changes in legislation after conclusion of the contract that affect the services, or other unavailability of products - this does not constitute a breach of contract.

§ 11 Rights of use in software products and documents

11.1. Insofar as software products are supplied to the Client by the Contractor, or the Client is enabled to use software products in the context of the services, the Client is granted the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.

11.2. Where software products are used in a network, a licence is required for each concurrent user. Where software products are used on stand-alone PCs, a licence is required for each PC.

11.3. For third-party software products supplied to the Client by the Contractor, the respective licence terms of the manufacturer of those software products take precedence over the provisions of this clause.

11.4. Unless a separate agreement is concluded, no further rights in software products are transferred to the Client. The Client’s rights under sections 40(d) and 40(e) of the Austrian Copyright Act (UrhG) remain unaffected.

11.5. All documents supplied to the Client by the Contractor, in particular the documentation for software products, may neither be reproduced nor distributed in any way, whether for consideration or free of charge.

§ 12 Term of the contract

12.1. The contract enters into force upon signature by both contracting parties and runs for an indefinite period. The contract may be terminated by either contracting party by registered letter subject to a notice period of 6 months, but at the earliest with effect from the end of the minimum term agreed in the contract.

12.2. Either contracting party is entitled to terminate the contract prematurely and without notice by registered letter for good cause. Good cause exists in particular where the other contracting party breaches material obligations under the contract despite a written warning and threat of termination, or where bankruptcy or other insolvency proceedings are applied for or opened against the other contracting party or are rejected for lack of assets, or where the other contracting party’s services are hindered or prevented by force majeure for a period of more than six months.

12.3. The Contractor is furthermore entitled to terminate the contract prematurely for good cause where material parameters of service provision have changed and, for this reason, continuation of the services can no longer reasonably be expected of the Contractor from an economic point of view.

12.4. Upon termination of the contract, the Client shall return without delay to the Contractor all documents and documentation supplied to it by the Contractor.

12.5. On request, the Contractor will support the Client at the end of the contract, at the hourly rates applicable at the Contractor from time to time, in transferring the services back to the Client or to a third party nominated by the Client.

§ 13 Data protection

13.1. When handling personal data, the Contractor shall observe the provisions of the Austrian Data Protection Act and the Telecommunications Act and shall take the technical and organisational measures required for data protection within the Contractor’s sphere of responsibility. In particular, the Contractor shall oblige its employees to comply with the provisions of section 15 of the Data Protection Act.

13.2. The Contractor is not obliged to review the admissibility of the data processing commissioned by the Client within the meaning of data protection law. The Client must ensure the admissibility of the transfer of personal data to the Contractor and of the processing of such data by the Contractor.

13.3. The Contractor takes all reasonable measures to protect the Client’s data and information stored at the Contractor’s locations against unauthorised access by third parties. The Contractor is not, however, responsible if third parties nevertheless succeed in gaining unlawful access to the data and information.

13.4. Upon conclusion of the contract, the Client consents to the data from this transaction also being transmitted to subcontractors involved in the handling of this assignment.

§ 14 Confidentiality

14.1. Each contracting party assures the other that it will treat as confidential all trade secrets disclosed to it by the other in connection with this contract and its performance, and will not make them accessible to third parties, unless such information is generally known, or was already known to the recipient beforehand without an obligation of confidentiality, or is communicated or supplied to the recipient by a third party without an obligation of confidentiality, or has demonstrably been developed independently by the recipient, or must be disclosed on the basis of a final decision of an authority or court.

14.2. Subcontractors affiliated with the Contractor are not deemed to be third parties, provided they are subject to a confidentiality obligation corresponding in substance to this clause.

§ 15 Miscellaneous

15.1. In the contract, the contracting parties shall name knowledgeable and competent employees who are able to make or initiate the necessary decisions.

15.2. During the term of the contract and until one year after the end of the contract, the Client shall not, either itself or through third parties, solicit employees deployed by the Contractor to provide the services. The Client undertakes to pay the Contractor, for each instance of infringement, a contractual penalty amounting to twelve times the gross monthly salary last received by the employee concerned from the Contractor, but at least the collective-agreement salary of an employee of undertakings in the field of services in automatic data processing and information technology, in the experience level for special activities (ST2).

15.3. Amendments and supplements to the contract must be made in writing. This also applies to any waiver of this requirement of written form.

15.4. Should one or more provisions of the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision of corresponding meaning that comes closest to the economic purpose of the invalid or unenforceable clause.

15.5. Any disposition of the rights or obligations existing under the contract requires the prior written consent of the other contracting party. The Contractor is, however, entitled to transfer the contract to a company affiliated with the Contractor under company law even without the Client’s consent.

15.6. The Contractor is entitled to engage third parties, in whole or in part, to fulfil its obligations. Where personal data worthy of protection within the meaning of the Data Protection Act is to be processed by the Contractor for the Client under the SLA and third parties are engaged to fulfil the obligations in whole or in part, the Client must be notified thereof in good time.

15.7. Unless otherwise agreed, the statutory provisions applicable between entrepreneurs apply exclusively under Austrian law, even where the assignment is carried out abroad. For any disputes, the exclusive local jurisdiction of the court having subject-matter jurisdiction for the Contractor’s place of business is deemed to be agreed.

15.8. In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties mutually agree to involve registered mediators (Austrian Civil Law Mediation Act, ZivMediatG) specialising in commercial mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. Should no agreement be reached on the selection of the commercial mediators or on substance, legal steps shall be initiated at the earliest one month after the failure of the negotiations. In the event that mediation does not come about or is discontinued, Austrian law shall apply in any court proceedings subsequently initiated. All necessary expenses incurred as a result of prior mediation, in particular those for any legal adviser involved, may, as agreed, be asserted as “pre-litigation costs” in court or arbitration proceedings.

§ 16

Kavedo is entitled to store and process electronically the data connected with this contract and its performance that comes to Kavedo’s knowledge. Kavedo may also engage other companies for such processing and forward data accordingly. The Client declares that it will hand over to Kavedo data subject to the Data Protection Act for the fulfilment of the contractually agreed purpose only where such data does not conflict with the legitimate interests of third parties. Kavedo is not obliged to review the admissibility of the data use. The Client shall indemnify and hold Kavedo harmless against any resulting third-party claims.

§ 17

This contract is governed exclusively by Austrian substantive law. Any conflict-of-law rules referring to other legal systems shall not apply. The contracting parties agree on the exclusive jurisdiction of the court having subject-matter jurisdiction, namely the Regional Court of Salzburg (Landesgericht Salzburg), for all disputes arising from this contract or relating to its breach, termination or invalidity. Kavedo is entitled to assert claims also at the Client’s general place of jurisdiction or at another place of jurisdiction. If the Client has its seat in a state that has not ratified the Lugano Convention (Federal Law Gazette 1996/448) or the Brussels Convention (EuGVÜ) (Federal Law Gazette III 1998/209 as amended) and enforcement of a decision concerning this contract is not possible under those conventions, Kavedo may, at its own discretion, also assert claims before an arbitral tribunal. For this case, the following arbitration clause is agreed between the contracting parties: “Disputes arising from this contract or relating to its breach, termination or invalidity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by a sole arbitrator appointed in accordance with those rules. The language of the arbitration is German. The parties expressly waive any challenge to, or annulment of, the arbitral award.”

§ 18

Amendments and supplements to this contract, as well as legally relevant declarations made on the basis of this contract, must be made in writing. The requirement of written form may be waived only in writing.

§ 19

The Client undertakes to notify Kavedo OG in writing without delay of any changes to its delivery address. Legally relevant declarations in connection with this contract shall be served on the contracting parties at the last known address. Service is thereby deemed to have been effected even if the other contracting party has moved without leaving its current address. Periods connected with this contract are observed if the required declaration was demonstrably handed over to the postal service or another carrier on the last day of the period.

§ 20

This contract sets out in full the agreement reached between the contracting parties. By signing this contract, the contracting parties confirm that they have not made any agreements going beyond it. Any agreements, assurances or other statements made in connection with the subject matter of the contract prior to its conclusion hereby cease to have effect.

§ 21

The contracting parties are fully aware of the services to be rendered by each of them and of their value. The contracting parties waive the right to challenge this contract - on whatever legal grounds - or to raise corresponding judicial or extrajudicial objections.

§ 22

The place of performance is Puch bei Hallein / Austria / Europe.

§ 23

Should individual provisions of this contract be or become invalid, the remainder of the contract shall remain in force. Invalid or void provisions shall be interpreted in such a way that the economic and legal purpose is achieved as far as possible. Subsidiarily, the contracting parties undertake to replace invalid provisions with valid provisions that achieve, or come closest to, the intended legal and economic purpose.

This is a non-binding English translation provided for convenience. In the event of any discrepancy, the German version shall prevail.