(hereinafter referred to as “WS”)
All our offers, acceptance of orders, conclusion of contracts and other legal declarations are made exclusively under the terms and conditions set out below and our terms and conditions of contract and support. Deviations thereof, in particular through the transmission of contrary terms and conditions of our customers, shall only be agreed if we have expressly consented to this in writing beforehand. Verbal agreements or arrangements shall only become effective upon our written confirmation. The exact scope of services is defined in our contract and support conditions.
2) Offer and Contract Conclusion
Our offers are always subject to change until the final conclusion of the contract; a legally effective contract is only concluded when our order confirmation is sent to the customer. The content of the contract shall be determined exclusively by the order confirmation and, in addition, by our terms and conditions of contract and support.
3) Rights of Use
WS is exclusively entitled to all property rights established or justifiable on our products. With the purchase of the product, the customer is only entitled to use these property rights to the contractually agreed extent (for his own purposes); any rights of use are only granted as a work use authorisation (only for the contractually expressly agreed use by the customer himself). The client is only allowed to pass on/transfer the rights of use to third parties with the explicit, prior written consent of WS.
4) Responsibility of the Client
The client is obliged to comply with all legal regulations that must be observed in connection with the use of the product created by WS (both towards WS and towards third parties). Materials provided by the client, such as data, images, other information, etc., as well as instructions given by the client regarding the creation and content of the product are not checked by WS for their compatibility with legal regulations or with possible rights of third parties. In this respect, the client shall fully indemnify and hold WS harmless in the event of a claim by a third party.
5) Handover and Inspection Obligations
The handover of the products created by WS is deemed to be completed with the installation at the client’s site. In the case of websites, the handover takes place through notification of completion by email to the client.
Any defects are to be reported by the client in writing immediately after the handover ("obligation to report defects"), otherwise all (warranty) claims are lost (Paragraph 377(2) UGB (Austrian Business Code). From the time of handover, the customer shall bear the burden of proof for the existence of (alleged) defects.
Only the specification drawn up together with the customer shall be used to assess the defectiveness. In any case, the warranty period ends 6 months after handover. If there are – justified – defects, the client is primarily entitled to the implementation of the improvement by WS.
Unless otherwise agreed, payments are to be made immediately upon invoicing, without any deductions.
The client is not entitled to withhold payments from the contract concluded with WS – for whatever reason or title. The set-off against claims of WS with (alleged) counterclaims – of whatever kind or title – by the client is excluded.
If the client is in default of payment towards WS, WS is entitled to stop all (further) deliveries of goods as well as all support services (from all contractual relationships) until all outstanding claims of the client are settled.
7) Delay in Delivery by the Client
If the client is delayed in providing materials, especially documents, information, etc. or other contributions to the creation of the product, WS can withdraw from the contract by setting a two-week grace period. In this case, the client has no claim to the return of any advance payment already made and this is therefore forfeited in favour of WS, in addition to which WS is entitled to invoice the services provided in excess of the advance payment and at this point in time.
Any liability of WS for damages claimed by the client due to slight negligence – with the exception of liability for personal injury – is excluded. In this context, it is mutually agreed that WS has no economic supremacy or monopoly position, so that such an exclusion of liability is permissible. Liability for (alleged) consequential damages of the client, financial losses, lost profit, savings not achieved, loss of interest and of damages from third party claims against the client is excluded.
9) Data Protection Policy
The client authorises WS to process, store and evaluate the data received about them in connection with the business relationship within the meaning of the Data Protection Act. This applies in particular to the fulfilment and execution of contractual obligations.
10) Final provisions
The contract concluded between WS and the customer is a business-related transaction on both sides. The contractual relationship with the Client is exclusively governed by Austrian law, with the exception of the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.
For disputes arising from this contractual relationship, the exclusive jurisdiction of the court with subject-matter jurisdiction for A-6020 Innsbruck is agreed.
As of: 09/06/21
Waldhart Software GmbH