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AGB

1 Scope and Area of Application of the T&C

Trading & Consulting ‘H.P.C. GmbH” (hereafter “hpc”) provides a wide range of services, such as
  • Developing information concepts
  • Global and detailed analyses
  • Creation of individual programs
  • Provision of library (standard) programs
  • Sales of rights of use for software products
  • Sales of use licenses
  • Support at project launch
  • Conversion support
  • Program maintenance
  • Creation of program media
  • other individual services.
The following general terms and conditions (also “T&C” hereafter) apply to all services and deliveries that hpc provides to the client.
The client’s general terms and conditions apply only to the extent that hpc has expressly agreed in writing to be bound by them.
All orders and agreements are legally binding only when they have been signed by hpc as a company, and only to the extent indicated in the order confirmation.
All quotations are fundamentally subject to change.
The hpc T&C also apply to additional business between the contractual parties, even if future contract agreements do not expressly make reference to these T&C again.
Changes in the T&C can be made by hpc at any time, and are effective for existing contractual relationships as well. hpc will inform a client of a change in the existing T&C during the course of an existing contract directly and in writing.
The current version of the T&C is published by hpc at www.hpc.at, or sent to the contractual partner directly.

2 Scope of Services

hpc agrees to generate software programs that are the object of the contract, in accordance with the scope of services of the contractually agreed support class in each case.The basis for the generation of individual programs is the written description of services, which hpc develops for a fee on the basis of the documentation and information provided to it by the client, or that the client provides directly to hpc. This description of services is to be checked by the client for correctness and completeness, marked with his approval, and sent to hpc. Change requests by the client that occur later can lead to specific changes in dates and prices, of which hpc will inform the client in each individual case in a timely manner. Individually generated software and program adaptations require program acceptance by the client no later than four weeks after delivery, for the affected one in each case. These are confirmed in a protocol by the client (check for correctness and completeness, on the basis of the description of services accepted by hpc, using fixed data provided), and this protocol is to be sent to hpc immediately, within the four-week period (by fax or e-mail in advance is sufficient).If the client allows the period of four weeks to expire without the program acceptance, then the delivered software is considered to be accepted as of the ending date of the time period indicated. When the software is place into live use by the client, the software is considered to be accepted in any case.
Shipping of program media, documentation, and descriptions of services is at the cost and risk of the client. Any further training or explanation desired by the client will be billed separately by hpc. Insurance is provided only upon written request by and at the cost of the client.
The execution of the contractual services by hpc takes place, unless otherwise agreed, at its discretion at the location of the computer system, or in the business facility of hpc, during normal hpc working hours (place of fulfillment).
If, as an exception and at the express request of the client, services are provided outside of normal working hours, then the additional costs will be billed separately. The selection of the employee who provides the contractual services is at hpc’s sole discretion, and hpc is also entitled to engage subcontractors.
If, in the course of the work, it should develop that the execution of the order in accordance with the description of services is not possible in fact or under law, then hpc is obligated to indicate this to the client immediately. If the client does not appropriately modify the description of services, or if the client does not meet the conditions that would allow execution of the description of services, then hpc is entitled to decline the order.
If the reasons that execution is impossible are a result of negligence on the part of the client, or a later change in the description of services by the client, hpc is entitled to withdraw from the contract. The costs and expenses incurred by hpc for activities to date, as well as any cancellation costs, are to be reimbursed by the client in full within fourteen days after receipt of invoice.

3 Copyright and Usage

All copyrights to the agreed upon services (programs, documentation, studies, etc.) belong to hpc, its possible legal successors, or their grantors of license. The client receives only the right to use the software after paying the contractual fee, exclusively for his own purposes, only for the hardware specified in the contract, and to the extent of the purchased quantity of licenses for simultaneous use at several workstations. Only a license for the use of works is purchased under the contract.Duplication by the client is forbidden, in accordance with copyright law. The cooperation of the client in the generation of the software does not obtain for the client any rights beyond the usage set forth in this contract.The client is allowed to produce copies for archival and data security purposes, under the condition that the software does not contain any express prohibition by the grantor of license or third parties, and that all copyright and ownership indications are included in full in these copies.
Any violation of hpc copyrights will result in claims of damages or forbearance, and in each individual case of violation of these copyrights, full amends are to be made by the client.

4 Delivery dates

hpc endeavors to meet the agreed upon deadlines for fulfillment as closely as possible.The client is not entitled to withdraw from the contract, nor to claims of damage, nor to any other legal remedy (e.g. price reduction, etc.) due to exceeding the planned deadlines.Partial deliveries and advance deliveries are allowed, and the client may not refuse acceptance of them.

5 Prices

All prices are in Euro, without sales taxes, at the place of fulfillment. They apply only to this contract. The costs for program media, and any contractual fees, are billed additionally.If not otherwise agreed in the order, the prices listed in the quotation or order form apply. If wages or material costs, or other costs to be paid by hpc, should increase before the time of delivery, then hpc is entitled to adjust the prices accordingly, and to bill the client starting at the beginning of the month following the increase.The increases are considered to be accepted in advance by the client if they do not exceed more than 10 % (annually) of the agreed total of each order.
For services that can be provided at the business facility of hpc, but are provided at the client’s location at the client’s request, the client bears the costs for travel, lodging, and travel time for the hpc personnel assigned to provide the service.

6 Payment

The invoices presented by hpc, including sales taxes, are due in full and free of costs no later than fourteen days after receipt of invoice. For partial invoices, the payment terms for the overall order apply analogously.For orders that include several units, hpc is entitled to invoice after delivery of each individual unit of service.Compliance with the agreed payment dates is a material condition for the execution of the delivery and contractual fulfillment by hpc.
Failure to make the agreed payments entitles hpc to stop any ongoing work and withdraw from the contract. All associated costs and loss of profits are to be borne by the client.
In case of delay of payment, interest on arrears in the amount of 15% per annum will be billed. Upon failure to make two partial payments, and after expiration of an additional deadline of fourteen days, hpc is entitled to enforce default, and to call in any consigned bills of exchange.

7 Liability

hpc is liable only for damages that are intentional or grossly negligent. No liability exists for slight negligence.An error required action exists if the software program that is the object of each contract exhibits behavior in deviation from the appropriate description of services / document, in the latest valid edition, and this can be reproduced by the client.Notices of defects are to be directed to the client solely in writing. In order to precisely investigate any errors that occur, the client is obligated to make the computer system, software programs, protocols, diagnostic documentation, and data that he uses available to hpc to an appropriate extent for testing purposes, during normal working hours, free of charge, and to support hpc in correcting the error as much as possible. Identified errors that are the fault of hpc are to be corrected by hpc within an appropriate period. hpc is released from this obligation if there are conditions that the client can affect that prevent it, and that are not removed despite hpc’s request to do so. A solution to the error is made by a software update or by appropriate emergency solutions.
Repayment is excluded in all cases of consequential damages, foregone profits, asset damages, savings not achieved, interest losses, and damages arising from claims by third parties against the client.

8 Loyalty

The contractual parties agree to mutual loyalty. They will not undertake any kind of solicitation or employment, including via third parties, of the employees of the other contractual party that have worked on the implementation of the orders during the period of the contract or order, and for twelve months after completion of the contract or order.The contractual party that violates this provision is obligated to pay the other contractual partner lump sum damages in the amount of EUR 100,000.00 for each individual violation of this provision. This lump sum damage compensation is not subject to reduction by judgment per § 1336 Para. 2 ABGB (Austrian Federal Civil Code). hpc is entitled, however, to enforce claims of damage beyond the lump sum damage payment against the client.

9 Privacy, Nondisclosure

The client and hpc require their employees to comply with the provisions of the privacy law.hpc and the client agree to maintain strict confidentiality and secrecy of the order and its contents, as well as all mutually obtained information and documentation. hpc is entitled, however, to name the client as a client for reference purposes. The validity of this confidentiality agreement applies for the duration of the order and for a period of twelve months after completion of the order.

10 Other Provisions

To the extent not otherwise expressly agreed, Austrian material law applies exclusively, and the rules on conflict of laws do not apply; this is true even if the contract is carried out in a foreign country. The local authority of the materially responsible court for the place of business of hpc is considered to be agreed to for any disputes. In addition, however, hpc is also entitled to enforce claims against the contractual partner with the court having jurisdiction over the client’s location or residence.Failure to meet significant contractual obligations by a contractual partner entitles the other contractual partner to prematurely dissolve the contract.If individual provisions of these T&C are or become invalid, then the remainder of the T&C is not affected. The contractual partners will work together as partners to find a regulation that is as close as possible to the invalid provision.
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