The following General Terms and Conditions shall apply exclusively to all business transactions of Digitalwerk GmbH (hereinafter referred to as "DW"), in particular to its deliveries and services, unless otherwise agreed in writing. In the following General Terms and Conditions, DW's contractual partner shall be referred to as the "Customer", DW and the Customer shall be referred to individually as the "Party" and collectively as the "Parties".
General terms and conditions of the Customer shall not apply even if the Customer refers to them in connection with its order or assignment and DW does not object to them. Commitments, collateral agreements as well as amendments or supplements to the General Terms and Conditions shall require the written form. This shall also apply to any waiver or amendment of the written formr equirement.
DW reserves the right to amend these General Terms and Conditions due to new technical developments, due to changes in legislation or jurisdiction, or due to other equivalent reasons. Changes shall be communicated to the Customer at least four weeks in advance. If the Customer does not object to these changes within four weeks of the communication, the contractual relationship shall continue based on the amended General Terms and Conditions. If the Customer objects to the amended General Terms and Conditions, DW shall have the option to terminate the Agreement for good cause pursuant to § 5 (2).
§ 2 Offer, conclusion of contract, deliveries and services
Offers of DW are non-binding and without obligation. A contract shall only be concluded upon written order confirmation by DW, at the latest upon acceptance of the delivery by the Customer. Cost estimates are non-binding, unless expressly agreed otherwise in writing.
Cost estimates are against payment. A fee paid for the cost estimate shall be credited if an order is placed on the basis of this cost estimate.
The cost estimate shall be prepared to the best of DW's knowledge, however, DW cannot guarantee its correctness. If cost increases of more than 15% occur after the order has been placed, DW shall inform the Customer without delay. Unavoidable cost overruns of up to 15% may also be charged without separate information.
The content and scope of the services owed by DW shall result from DW's order confirmation in the absence of any other written agreements.
Reasonable partial deliveries are permissible and can be invoiced separately.
DW reserves the right to make product changes, in particular in the course of further developments, provided that the agreed performance data are achieved.
Delivery dates shall be non-binding unless they are expressly agreed in writing as binding. DW shall in any case only be in default of delivery if the delay is DW's fault, the performance is due and the Customer has unsuccessfully set DW a reasonable, written period of grace of at least 30 days.
Delivery dates shall be reasonably extended for DW in case of disruptions due to force majeure and other events not attributable to DW, such as disruptions in supply by DW's suppliers, strikes, lockouts, operational disruptions etc. DW reserves the right to withdraw from the contract if the delay in performance caused by such events lasts longer than six weeks.
In case of negligence, a claim of the Customer for damages due to delayed delivery is excluded, otherwise limited to the amount of the foreseeable damage, however, to a maximum of 5% of the value of the delivery affected by the delay.
If the Customer refuses to accept the agreed delivery, the Customer shall bear the price risk. In this case, DW shall be entitled to store the goods at the name, risk and expense of the Customer and may freely dispose of the goods after expiry of a reasonable period for acceptance - without losing the right to payment of the purchase price.
§ 3 Cooperation obligations of the Customer
The Customer shall provide DW with all information and documents required for the performance of the service in a timely and complete manner. The Customer shall inform DW of all circumstances that are relevant for the performance of the service, even if the Customer only becomes aware of such circumstances during the performance of the service. Costs incurred by DW as a result of having to re-perform tasks due to due to incorrect, incomplete or subsequently changed information provided by the Customer, or as a result of any delays, shall be borne by the Customer. Such additional services shall be invoiced according to the applicable prices (hourly or daily rates).
The Customer shall be obliged to check whether any documents (such as images, photos, logos, etc.) provided to DW for the execution of the service are encumbered with copyrights, trademark rights or other rights of third parties and guarantees that the documents are free of third party rights and are suitable for the service. The Customer shall indemnify and hold DW harmless in this respect. Furthermore, the Customer warrants and represents that it has obtained the necessary consents from the third parties concerned for the processing, storage and transmission of personal data of third parties.
The Customer shall compensate DW for all detriments incurred by DW due to such third party claims, in particular attorney's fees of DW and the opposing party. The Customer undertakes to support DW in connection with the defence against such third party claims. For this purpose, the Customer shall provide DW with the necessary documents and information.
The Customer shall be obliged to check and release all deliverables (in particular (preliminary) drafts, mock-ups, wireframes, graphics, designs, templates, videos, photos, editorial plans and electronic files) within a reasonable period of time after receipt. DW may not meet the agreed timeline if the Customer does not release these materials in a timely manner. DW shall not be liable for any damages incurred by the Customer due to such delay. If DW incurs additional effort as a result, such additional effort shall be compensated by the Customer according to the applicable prices (hourly or daily rates).
Additional effort incurred by DW due to changes of project team members, in particular the project management, on Customer's side and affecting the agreed framework conditions shall also be borne by the Customer. Such additional effort shall be compensated to DW by the Customer according to the respective applicable prices (hourly or daily rates).
§ 4 Prices and Payment Terms, Retention of Title, Indexation
The prices shall result from DW's order confirmation, otherwise, in the absence of any other written agreement, from DW's price list valid at the time of the conclusion of the respective contract.
Prices are to be understood ex DW's place of business, excluding VAT. Customary packaging of the delivered products shall be included in the prices. Other ancillary services, in particular shipping, freight, environmental and handling rates shall be invoiced to the Customer in accordance with the respective valid price list.
DW reserves the right to reasonably increase the agreed price if cost increases occur after the conclusion of the contract, in particular as a result of price increases of the suppliers or exchange rate fluctuations or if statutory levies or taxes are subsequently introduced or increased. This shall not affect DW's right to adjust the agreed prices in accordance with § 4 (13) in accordance with the indexation.
Payments are due immediately after receipt of the invoice without any deductions. Invoice delivery is made with delivery, via email or by mail. If the Customer exceeds the payment deadlines granted, interest of 8% p.a. above the prime rate of the Austrian Central Bank on the purchase price shall be owed from the due date on without further reminder. In the event that a reminder of the outstanding price is necessary, a reminder fee of 6% of the net amount of the invoice, but not more than 100 EUR per reminder, will be charged. The right of DW to claim further damages remains unaffected.
The costs for services which are requested by the Customer in addition to the agreed flat-rate services shall be calculated in accordance with the prices valid at the time of the respective request.
DW shall be entitled, despite any contrary provisions of the Customer, to set off payments first against the Customer's earlier debts. If costs and interest have already been incurred due to default, DW shall be entitled to set off the payments first against the costs, then against the interest and finally against the amount of the claim.
The Customer may only set off claims that are undisputed or have become legally enforceable. The Customer may only exercise a right of retention due to counterclaims that are based on the same contractual relationship. In the case of ongoing business relationships, each individual order shall be deemed a separate contractual relationship.
If the payment terms are not met without justifiable reason, DW may at any time optionally demand delivery concurrently against cash payment, advance payment or provision of security. In such case, all outstanding claims, including those for which other payment terms have been agreed, shall become due for payment immediately.
If payment in instalments is agreed between the Parties, the entire outstanding purchase price shall become due for payment immediately in the event of non-payment of an instalment („Terminverlust“).
Goods delivered by DW shall remain the property of DW until the purchase price has been paid in full and all contractual obligations have been fulfilled by the Customer, including any interest and reminder fees (retention of title, „Eigentumsvorbehalt“). For the duration of the retention of title, the Customer may not dispose of the goods. In particular, the goods may not be sold, pledged, assigned as security, rented or otherwise made available to third parties for use. In case of mixing, processing or combining of the goods subject to retention of title with material owned by the Customer or third parties, DW's ownership shall remain in proportion of the value of the goods subject to retention of title to the value of the finished or new object. In the event that the purchase price is not adjusted, the Customer undertakes to transfer to DW its co-ownership share in the new item in order to adjust the outstanding purchase price claim.
In case of default of payment, DW shall be entitled to enter the Customer's business premises in order to assert the retention of title and to take possession of the retained goods or to demand the assignment of the Customer's claims for return against its clients; this applies also for future deliveries or services of DW to the Customer, or in case of indications of a deterioration of the financial situation of the Customer.
The repossession or seizure of the retained goods by DW shall not be deemed as a withdrawal from the contract.
Items delivered for test and demonstration purposes shall remain the property of DW. The Customer shall be obliged to ensure proper storage and may only use the items beyond the test and demonstration purpose on the basis of a separate agreement with DW.
The contractually agreed prices shall be fixed for the first twelve calendar months from the conclusion of the contract; for the subsequent period, value stability shall be expressly agreed. Thereafter, the contractually agreed prices shall change at the beginning of each calendar year in accordance with the change in the consumer price index published monthly by the Federal Statistical Office of Austria („Bundesanstalt Statistik Österreich“) or an index replacing it, whereby fluctuations in the index figure up to and including 5% shall be disregarded. The index figure published for the month in which the contract is concluded shall serve as the reference value (base index) for the first adjustment of charges; the value adjustment shall be made on the basis of the percentage difference between the target index and the base index.
§ 5 Termination Options
Ordinary termination: Contracts by which DW undertakes to provide recurring services over a longer period of time and the Customer undertakes to make recurring monetary payments over a longer period of time (i.e. a continuing obligation) and which have been concluded for an indefinite period of time - with or without a minimum term - may be terminated in writing by either Party by giving three months' notice to the end of each calendar quarter. If a continuing obligation has been concluded for an indefinite period with a minimum term, such contract may only be terminated by either Party upon expiry of the minimum term, subject to the three-month notice period to the end of each calendar quarter. If, for example, a contract was concluded with a minimum term of one year, the contract can be terminated by one of the Parties at the earliest with expiry of the one-year minimum term, which means that the contractual relationship can end at the earliest after 15 months. Continuing obligations that are concluded for a fixed period of time and contracts by which the Parties commit themselves to a one-off exchange of services, the scope of which is already fixed when the contract is concluded (i.e. target obligation), cannot be terminated ordinarily.
Termination for good cause: In addition to the possibility of an ordinary termination in case of continuing obligations within the meaning of § 5 (1), any contract, irrespective of whether it is a continuing obligation or a target obligation, may be terminated by either Party with immediate effect for good cause. A good cause for DW shall be deemed to exist, in particular, if the Customer continues to violate the cooperation obligations of § 3 despite a prior written warning and setting of a reasonable grace period by DW, or if the Customer does not comply with its payment obligation despite a written warning and setting of a reasonable grace period by DW, or if the Customer objects to an amendment of these General Terms and Conditions within the meaning of § 1 (3).
§ 6 Warranties ("Gewährleistung")
DW warrants that the contractual products do not contain any material defects and are suitable for the use assumed under the contract or are suitable for ordinary use. In this context, the Parties are aware that it is not possible according to the state of the art to prevent errors in the software under all conditions of use.
DW does not warrant that the functions of software meet the requirements of the Customer and that the contractual products will work together in the selection made by the Customer. Without express written agreement, DW does not warrant that the contractual services or parts thereof are free of third party rights, in particular industrial property rights and copyrights of third parties.
In the event of a defect (“Mangel”), DW shall first choose between improvement and replacement. Replaced parts shall become the property of DW. If DW is not able to improve or replace the defect, if such improvement or replacement involves disproportionate costs or if DW does not remedy the defect within a reasonable grace period set in writing, the Customer shall be entitled to reduce the purchase price or to terminate the contract. If DW delivers a replacement product for the purpose of subsequent performance, the Customer shall surrender the defective product and pay compensation for the value of any benefits of use. In the event of termination of the contract, the Customer shall be credited with an amount resulting from the purchase price less the value-related benefits of use. The benefits of use shall be determined on the basis of the ratio of the use of the item by the Customer to the expected total period of use.
All ancillary costs associated with the improvement or replacement (e.g. transport costs, packaging costs) shall be borne by the Customer unless they are disproportionate to the order value.
In the case of warranty claims, repair orders subject to a charge and returns of any kind, the current processing guidelines and the current price list shall apply.
All further or other claims of the Customer than those provided for in these provisions, irrespective of the legal grounds, shall be excluded, unless otherwise mandatorily provided for in these provisions or by law. DW shall not be liable for any damage caused by a defect („Mangelfolgeschäden“).
The Customer shall give notice of defects without undue delay, at the latest within fourteen days after delivery/service by DW, stating and describing the defect in detail. Hidden defects shall also be notified in writing within fourteen days after their discovery with a precise description of the defect. Both Parties agree that this period is reasonable within the meaning of the Austrian Commercial Code („Unternehmensgesetzbuch“). Otherwise, the performance shall be deemed to have been approved; in this case, the Customer may not assert any warranty claims or claims for damages and shall have no right to challenge the contract on the grounds of mistake due to a defect.
If the examination of a notice of defect shows that there is no defect, the costs of the examination and repair shall be charged at DW's applicable prices (hourly or daily rates).
The warranty period shall be six months from delivery/service. For the avoidance of doubt, it is stated that the six-month warranty period shall also apply to hidden defects, whereby it is again pointed out that also hidden defects shall be notified by Customer within fourteen days after their discovery. If certain components have been replaced by DW within the scope of the warranty, the six-month warranty period shall start anew with regard to such replaced components upon their delivery. The warranty period of other, non-exchanged components or of the overall performance shall remain unaffected by this, so that the latter shall continue to run.
The Parties agree that DW has creative freedom within the scope of the contract and that DW's services constitute creative services. DW shall not guarantee that the services rendered comply with the Customer's wishes and requirements, unless this is expressly agreed in the contract. DW shall implement the specifications set forth in the order confirmation at its own discretion. The Customer may not assert any warranty claims if the Customer does not like the result even though it meets the requirements set forth in the order confirmation.
It shall be the Customer's exclusive responsibility to verify whether the services ordered by the Customer are permissible according to legal provisions, in particular the competition law, the trademark law, the copyright law and the administrative law. It is clarified that such a legal examination is not provided for by the contract and will not be carried out by DW, unless the Customer and DW agree on this separately in writing. Unless the Parties have a separate written agreement, the Customer shall indemnify and hold DW harmless in this respect.
DW shall not be obliged to make improvements if defects for which the Customer is responsible prevent the improvement and the Customer fails to remedy such defects within a reasonable period of time.
§ 7 Industrial Property Rights, Copyrights, Rights of Third Parties
The Customer is not authorized to modify software, to adapt it for use on non-compatible hardware or to edit it in any other way. However, this does not apply to changes to configuration files. The Customer may not remove, modify, cover over or otherwise render unrecognizable any notices on the contractual products regarding copyrights, trademark rights or other property rights.
The Customer shall only be entitled to translate supplied documentation material for commercial purposes or to lease the Software with DW's prior written consent. Leasing contracts for supplied software can only be concluded within the framework of the respective manufacturer's terms and conditions or in compliance with the statutory provisions.
Each software is registered with the developer and is subject to the respective developer's terms and conditions with regard to use. The Customer shall be obliged to inform its clients, employees and other persons attributable to it of the prohibition of multiple use of the software and the prohibition of further transfer of the rights of use. The Customer shall immediately report any infringement by one of the aforementioned persons to DW and shall fully indemnify and hold DW harmless with regard to any such infringement.
In the absence of an express written agreement, DW shall not be obliged to examine whether and to what extent the contractual services or parts thereof are free of third party rights, in particular commercial property rights and copyrights of third parties, and/or infringe such third party rights. The Customer shall fully indemnify and hold DW harmless from and against any and all claims of third parties - which shall also include authorities - based on or in connection with the infringement of third party rights, in particular commercial property rights and copyrights of third parties, by the contractual services or parts thereof.
The Customer warrants that all information, data, documents, images, videos, logos, designs, texts, ideas and other materials provided by the Customer to DW in connection with or for the provision of contractual services by DW are free from third party rights, in particular third party commercial property rights and copyrights. DW shall not be obliged to examine in this respect. Consequently, DW shall not be liable for the infringement of such rights and the Customer shall fully indemnify and hold DW harmless in this respect.
§ 8 Liabilities
Unless otherwise provided for in the following provisions, any further claims of the Customer - irrespective of the legal grounds - shall be excluded. DW shall not be liable for any damage that has not occurred to the delivery item itself; in particular, DW shall not be liable for any loss of profit or other financial losses of the Customer.
This exemption from liability does not apply: a) if the cause of the damage is based on intent or gross negligence on the part of DW or if DW intentionally or grossly negligently violates material contractual obligations. b) if claims are asserted in accordance with the Austrian Product Liability Act („Produkthaftungsgesetz“) or impossibility for which DW is responsible. c) in the case of guarantees granted by DW. d) for personal injury resulting from a breach of duty for which DW, its legal representatives or vicarious agents („Erfüllungsgehilfen“) are responsible.
The obligation to pay compensation shall in any case be limited to the typically occurring damage foreseeable at the time of the conclusion of the contract.
It is again pointed out that any liability of DW for damages caused by a defect ("Mangelfolgeschäden") is excluded.
If the liability of DW is excluded or limited, this shall also apply to the personal liability of the employees, representatives and vicarious agents („Erfüllungsgehilfen“).
The liability for a loss of data or programs for which DW is responsible shall also be limited to the damage that has occurred or would have occurred if the Customer had backed up its data within reasonable intervals (backup).
In any case, the obligation to pay compensation for property damage for which DW is responsible shall be limited to the coverage amount of the business and product liability insurance („Betriebs- und Produkthaftpflichtversicherung„) concluded by DW. In individual cases, DW is willing to inform the Customer of the corresponding sum insured.
The Customer shall be liable for any damage or additional expenses incurred by DW due to the fact that the information, data, documents, images, videos, logos, designs, texts, ideas and other materials provided by the Customer are not usable, infringe third party rights, in particular commercial property rights and copyrights of third parties, contain illegal content or are unsuitable for the provision of the services for other reasons. The Customer shall fully indemnify and hold DW harmless in this respect, also with regard to any claims of third parties - which shall also be understood to include authorities.
In the absence of an express written agreement, DW shall not be liable for the contractual services or parts thereof being free of third party rights, in particular industrial property rights and copyrights of third parties. The Customer shall fully indemnify and hold DW harmless in this respect, also with regard to any claims of third parties - which shall also be understood to include authorities.
DW shall not be liable for services of third parties if a third party has been commissioned in the name and for the account of the Customer. If DW has named such a third party to the Customer in advance, DW shall only be liable for grossly negligent selection fault (“Auswahlverschulden”).
§ 9 Import-Turnover Tax
A Customer with its registered office outside of Austria shall comply with the regulations of the import VAT of the European Union, in particular to disclose the VAT identification number to DW without being requested to do so and to willingly provide any necessary information. In case of non-compliance, the Customer shall reimburse DW for the expenses incurred thereby.
§ 10 General Provisions
The Customer shall not be entitled to assign its claims unter the Agreement.
DW may refer to the business relationship with the Customer in the context of references and use them for advertising purposes, unless agreed otherwise.
The Parties mutually undertake not to entice away or hire any permanent employees or freelancers of the other Party or to employ them in their own service or work contract relationships, even up to 2 years after the termination of a contractual relationship. In case of infringement, the Parties undertake to pay a contractual penalty of EUR 15,000 for each case of infringement to the other Party. The contractual penalty shall not be due if the other Party agrees in writing to such contractual relationship.
The exclusive place of jurisdiction for all disputes arising from this Agreement shall be the competent court in Vienna. DW shall furthermore be entitled to sue the Customer at its general place of jurisdiction. Contracts concluded by DW on the basis of these General Terms and Conditions and any claims arising therefrom, irrespective of their nature, shall be governed exclusively by Austrian law to the exclusion of the rules of reference to other jurisdictions.
The Customer is informed that its company or personal data required for the handling of the business relations will be processed electronically and will be further used for business purposes and gives its express consent to this.
Should any provisions of these General Terms and Conditions and/or the contract be or become invalid, this shall not affect the validity of the remaining provisions. Rather, in place of each invalid provision, a substitute provision shall apply which corresponds or at least comes close to the purpose of the agreement, as the Parties would have agreed to achieve the same economic result if they had known of the invalidity of the provision. The same shall apply to incompleteness and ambiguity.
The hours during which DW is available to the Customer are from Monday to Thursday from 09:30 to 16:30 (GMT +1) and on Fridays from 09:30 to 12:30 (GMT +1) (hereinafter the "Opening Hours"). DW reserves the right to adjust the Opening Hours at any time, in particular to reduce them.