(as issued by the "Austrian Institute Of Management Consultants And Information Technology" at the Austrian Chamber of Commerce)
All orders and agreements are only then legally binding, when they have been signed by an authorized representative of the seller and they obligate only to the extent set forth in the order confirmation.
All orders and agreements are only then legally binding, when they have been signed by an authorized representative of the seller and they obligate only to the extent set forth in the order confirmation.
The subject of an order can be:
Individual organizational plans and programs shall be elaborated in line with the type and scope of the information, documents and accessory aids which have been made available in to by the buyer. Included from the buyer are customary test data as well as the opportunity to test to the necessary extent, which the buyer shall make available on a timely basis, during normal business hours, and at his expense. If the buyer has already been working in real time in an operating system that is being made available for testing, the responsibility for securing the real data lies with the buyer.
The basis for creating custom-designed programs shall be the written performance specifications that either are provided by the buyer or that the seller writes up, at charge to the buyer, on the basis of documentation and information provided to him by the buyer. This performance catalogue is to be inspected by the buyer for correctness and completeness and is to be initialed by him as a sign of his assent. Requests for modifications which are made thereafter can result in separate deadline and price agreements.
For individually created software or program adaptations, it is required that each program be accepted by the buyer at the latest three weeks after delivery by the seller. This acceptance will be confirmed in a record of the transaction by the buyer (inspection for correctness and completeness in line with the performance specifications accepted by the seller on the basis of the test data made available to him, as described in 2.2). Should the buyer allow three weeks to pass without accepting the program, the delivered software shall be deemed to have been accepted as at the last day of the stated time period. If the buyer uses the software in real-time operations, the software is thereby deemed to have been accepted by the buyer. Possible defects – deviations from the written performance specifications – are to be reported to the seller with sufficient supporting documentation. The seller shall make efforts to correct the defects as quickly as possible. If there are serious defects that have been reported in writing, i.e., if real-time operations have not commenced or cannot be continued, a renewed acceptance of the work following correction of the deficiency is required.
When library (standard) programs have been ordered, the buyer confirms by virtue of the order his knowledge of the scope of performance of the ordered program.
Should it prove in the course of the work to be impossible, actually or legally, to complete the order in line with the performance specifications, it is the responsibility of the seller immediately to inform the buyer thereof. If the buyer does not change the performance specifications accordingly or create the conditions to make completion of the order possible, the seller can reject performance of the order. If the impossibility of carrying out the order is due to an omission on the part of the buyer or to a later change by the buyer in the performance specifications, the seller is entitled to withdraw from the order. The buyer is to reimburse the seller’s costs and fees that have come due for the work as well as any dismantling costs.
The shipment of program carriers, documentation, and performance specifications shall be at the expense and risk of the buyer. Should the buyer wish further training and elucidation, these will be billed separately. Insurance will be taken out only at the request of the buyer.
All prices are in Euro and do not include sales tax. They are valid only for the present order. The quoted prices are ex business domicile or branch office of the seller. The costs of program carriers (e.g., magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees shall be billed separately.
For library (standard) programs the valid prices are the list prices in effect on the day of delivery. All other services (organizational consultancy, programming, training, support during changeover, telephone advisory services) will be charged at the rates in effect on the day the services are performed. Deviations from the amount of time calculated as being required for the work (which serves as the basis for the price calculation) and for which the seller is not responsible, shall be charged according to the actual time spent.
The costs for travel, per diem, and overnight accommodation costs shall be invoiced separately to the buyer according to the valid respective rates. Transit time is to be considered as work time.
The seller is to endeavor to keep as closely as possible to the agreed dates for completion of the order.
The targeted completion dates can only then be met if 1) the buyer makes available to the seller in full, on the dates established by the seller, all the necessary preliminary work and documents, especially the performance specifications accepted by him in accordance with §2, Item 3, and if 2) the buyer fulfills his obligation to cooperate to the extent required. Delays in delivery and cost increases that result from incorrect, incomplete, or subsequently changed data and information or documentation provided, are not the responsibility of the seller and cannot result in the seller’s being in default of delivery. Additional costs so arising are to be borne by the buyer.
In the case of orders that encompass a number of units or programs, the seller is entitled to make partial deliveries and to submit partial invoices.
The invoices submitted by the seller, inclusive of sales tax, are payable at the latest 30 days from receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment for the entire order obtain analogously.
Where orders encompass a number of units (e.g., computer programs and/or training sessions, completion in stages), the seller is entitled to submit an invoice after the delivery of each unit or service.
Payment on the agreed-upon dates is an essential condition for delivery and for fulfillment of the contract by the seller. Failure on the part of the buyer to comply with the agreed payment schedule entitles the seller to discontinue current work and to withdraw from the contract. All costs connected therewith as well as loss of profit are to be borne by the buyer. In case of delayed payment, interest on payment in arrears will be charged at customary bank rates. In case two consecutive installments are not paid on time, the seller has the right to enforce non-compliance and to call accepted drafts.
The buyer is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.
The seller or his licensors are entitled to all copyrights on the agreed services (programs, documentation, etc.). The buyer obtains only the right to use the software after payment of the agreed remuneration strictly for his own purposes, only with the hardware as specified in the contract, and, in accordance with the number of licenses acquired, simultaneously at different workplaces. By this contract the buyer acquires merely the authorization to use the software. Further distribution of the product by the buyer is not permitted, as per the copyright law. The buyer does not by virtue of participating in the production of the software acquire any rights beyond its use as set forth in this contract. Any infringement of the copyrights of the seller will result in the right to claim damages, in which case the seller is entitled to full satisfaction.
The buyer is permitted to make copies for archival and data backup purposes only on condition that the software does not contain an express prohibition on the part of the licensor or a third party and that all notices of copyright and ownership are transferred unchanged into these copies.
Should the disclosure of the interfaces be necessary to produce the interoperability of the software covered by this contract, the seller is to request this of the buyer with remuneration of costs. If the seller does not comply with this stipulation and decompilation follows in accordance with copyright law, the results are to be used exclusively for the production of interoperability. Misuse will result in claims for damages.
Should the agreed-on date of a delivery be exceeded due solely to the fault or the unlawful conduct of the seller, the buyer is entitled to cancel the contract in question by registered letter if essential parts of the agreed service are not performed within a reasonable grace period and the buyer is in no way at fault.
Force majeure, work conflicts, natural catastrophes, and transportation stoppages, as well as other circumstances that cannot be influenced by the seller relieve the seller of the obligation to deliver or permit him to redetermine the agreed delivery period.
Cancellation by the buyer is only possible with the written agreement of the seller. If the seller agrees to the cancellation, he is entitled to charge not only for services rendered and accrued costs, but also a cancellation fee that represents 30% of the value of the total order not yet settled.
Notices of defects are valid only if they concern defects that are reproducible and if they are submitted within 4 weeks after delivery of the agreed service or, in the case of custom-designed software, after acceptance of the program in accordance with §2 Item 4, and documented in writing. If the notice of defects is justified, the defects are to be remedied within an appropriate period of time, and the buyer is to make available to the seller all measures required by him to investigate the problem and remedy the defects.
Revisions and additions, which, before the agreed work is handed over, prove to be necessary because of organizational deficiencies or technical deficiencies in the program, and for which the seller bears responsibility, are to be carried out free of charge by the seller.
The costs for support provided, diagnosis of errors, remedying defects and failures that are the responsibility of the buyer, as well as other corrections, revisions and additions are to be carried out by the seller and the costs charged to the buyer. This is also the case for the remedying of errors when program revisions, additions or other interventions have been carried out by the seller himself or by a third party.
Furthermore, the seller assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organizational resources and data carriers, insofar as these are stipulated, unusual operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment.
For programs that are subsequently altered by programmers of the buyer or by third parties, any existing warranty of the seller’s is no longer applicable.
Insofar as the subject of the order is the revision or supplementation of existing programs, the warranty covers the revision or supplementation. The warranty for the original program does not thereby again come into effect.
The seller is liable for damages insofar as intent or gross negligence can be proven, within the framework of statutory regulations. Liability is excluded in case of slight negligence.
The parties to the contract obligate themselves to reciprocal loyalty. They will not hire away staff or employ, including by way of third parties, staff of the other party to the contract who have worked on the realization of the projects, during the duration of the contract or for 12 months after the end of the contract. A party to the contract in violation of this clause is obliged to pay lump-sum damages in the amount of one annual salary of the employee.
The seller obligates his employees to observe the provisions of §15 of the Data Privacy Law.
The seller has the consensus intention to oppose any form of corruption.
The seller will at all times comply with all applicable laws, rules and sanctions in relation to anti-corruption. This includes the British Anti- Corruption-Act (UK Bribery Act 2010) but is expressly not limited to this.
The seller already has in place written policies and procedures according to the anti-corruption laws in its company to prevent a violation to anti-corruption laws
The seller will ensure that its third party agents, contractors or other persons who are performing services or providing goods on behalf of the seller in connection with this agreement does so only on the basis of a written contract and in compliance with the conditions mentioned above.
Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract. The parties to the contract will work in a spirit of partnership to find an arrangement that approximates as nearly as possible the inoperative terms.
Insofar as not otherwise agreed, the statutory regulations applicable to registered merchants are exclusively those in force under Austrian law. This is the case also when the order is carried out outside of Austria. In case of conflict, it is agreed that only the responsible local court in the seller’s place of business has jurisdiction. For sales to consumers within the meaning of the consumer protection law, the above terms are valid only insofar as the consumer protection law does not insist on other conditions.
“our”, “we”, “us” means NOA;
“Order” means purchase order or contract and any amendment thereto including these Conditions, duly signed on behalf of the NOA GmbH; “Supplier” means the supplier named in the Order.
All our current and future Orders shall be governed exclusively by these conditions of purchase. Any amendment of these conditions shall be invalid save as confirmed by us in writing. Contrary business conditions of the supplier are hereby expressly excluded. Such conditions shall never be accepted even if we omit expressly to oppose at any time. The Supplier shall recognize the exclusive validity of our conditions of purchase upon accepting the order as soon as it is received by it but in any case at the latest upon first performing the Order, even if any document it uses refers to its own conditions. Neither the acceptance of goods or services nor payment for same shall constitute approval of the supplier's business conditions.
The Supplier’s offer(s) shall be binding and made without cost to us. Orders shall be valid only if done in writing or confirmed by us in writing. Oral and telephone arrangements shall be invalid save as confirmed by us in writing.
Every Order is to be confirmed accepted by the Supplier without undue delay, and the binding delivery date shall be stated at the same time.
The delivery or performance of ordered goods or services by third parties, either wholly or in part, shall be subject to our written consent.
The agreed prices shall be final and include all ancillary costs including but not limited to freight, customs, insurance and shall cover all costs of delivery either to us or at our request to our customer.
If we have disclosed to the Supplier the purpose for which the goods or services will be used, or if such purpose should be evident to the Supplier even without our express disclosure, the Supplier shall be obliged to notify us without undue delay if the goods or services are unsuitable for such purpose.
We are to be notified without undue delay in writing of circumstances jeopardizing compliance with agreed delivery dates, so that the next steps can be clarified.
The Supplier must notify us without undue delay in writing of changes in the type of composition of the processed material or in the design, compared with similar goods or services delivered or performed previously. Such changes shall be subject to our written consent prior to delivery or performance.
The Supplier shall guarantee and warrant that the goods and services comply with the all current technical standards, relevant legal provisions, directives and regulations of public authorities, employer’s liability insurance associations and trade associations, and all statutory requirements applicable in Austria and the European Union, and shall upon each delivery notify us of specific, not generally known by us treatment and waste disposal requirements.
The Supplier shall warrant compliance with the restriction of the use of certain hazardous substances in electrical and electronic equipment, known as RoHS compliancy. In other words, no goods or services shall contain more than 0.1 weight percent of lead, mercury, hexavalent chromium, polybrominated biphenyls (PBBs) or polybrominated diphenyl ethers (PBDEs) per homogeneous substance or more than 0.01 weight percent of cadmium per homogeneous substance.
The agreed delivery date shall be binding on the Supplier. In particular, deliveries shall not be made conditional on the timely availability of supplies to the Supplier. Compliance with the delivery date for goods and services shall be governed by the time of their arrival or readiness for collection and acceptance at the place of receipt indicated by us.
The place of performance for goods and/or services of the Supplier shall be the place of receipt indicated in the Order.
In the event of non-compliance with the delivery date, at our absolute discretion we may grant the Supplier a reasonable period of grace to fulfill the delivery. If the Supplier does not deliver within such period of grace, we shall be entitled either to rescind the contract or to demand compensation for nonperformance. As a general rule, our claim to payment of an agreed contractual penalty shall remain unaffected hereby. If we demand compensation for non-performance, the agreed contractual penalty shall count towards such compensation.
If we no longer have an interest in the goods or services because of noncompliance with an agreed delivery date or period in the case of a transaction for delivery by a fixed date, the contract can be rescinded without the granting of a period of grace.
If the supplier is unable to comply with a delivery date because of force majeure, it must notify us without undue delay upon becoming aware of the force majeure event. In such an event, we shall be entitled either to defer the acceptance period, or, if our interest in the delivery is materially diminished, to rescind the contract wholly or in part and/or to demand compensation if applicable. The Supplier shall be unable to derive any claims whatsoever from such an occurrence. In particular, the Supplier shall not be entitled, in the event of force majeure or similar, at his discretion to rescind the contract or impose price increases.
All deliveries shall be accepted only on working days from Mondays to Fridays during the period from 9 am until 4 pm. Deliveries arriving outside of these hours cannot be accepted. Goods on pallets must be delivered by elevating platform vehicle or scissor lift because a loading bay is not available.
Purchased items are to be packed, labeled and shipped properly. Generally industry accepted packaging and shipping regulations are to be observed. Only approved, environment-friendly packaging materials are to be used. Non-approved packaging materials shall be disposed of or returned at the supplier's expense.
For each consignment, on the day of delivery we shall be provided with a shipping note indicating our purchase order number, the exact quantity, description, the unit and gross weight, and the dimensions of the items.
Shipping documents, delivery notes and packing slips are to accompany the deliveries. All documents must satisfy the identification requirements stated in clause 6.2 and indicate our Order details. Additional costs incurred by us because of non-compliance with these provisions shall be charged to the Supplier.
Part-deliveries are allowed only as agreed in writing by us; otherwise, we shall be entitled to refuse acceptance. In any event, part-deliveries shall not be treated as separate transactions and must be labeled accordingly.
In the case of deliveries excluding installation or assembly, the risk shall pass upon arrival of the goods at the place of receipt indicated by us. In the case of deliveries including installation or assembly, and in the case of services, the risk shall pass upon acceptance, which shall take place at the place of installation or receipt.
We shall not bear the cost of insuring the goods by way of a forwarder's insurance policy.
The cost of insurance through a transport insurance policy shall likewise not be accepted.
Duplicate invoices shall be presented to us after the delivery has been made. Where applicable monthly invoices are likewise to be sent in duplicate by the third day of the month following delivery of the goods or services. Invoices can be processed only if they indicate our Order number and are issued to the correct billing entity.
Payment shall generally be made by us by bank transfer within 14 days, subject to a 3 % discount, or alternatively within 30 days net without discount. This payment period shall start upon receipt of the invoice by us, but in no event before the goods are received or the service is accepted if such receipt or acceptance takes place after receipt of the invoice. The discount can also be applied in the event of offsetting or retention because of a defect.
The Supplier is not entitled to assign his claims against us without our written consent, or to have same collected by a third party.
Settlement of the invoice shall not constitute a waiver of claims for defects in respect of the delivered goods or services and shall not rule out subsequent complaints in respect of defects
In addition to the statutory warranty, the Supplier shall warrant the use of the best materials for the purpose, correct and proper workmanship, assembly which is free from defects and is fit for purpose, and the correct and proper implementation in respect of power consumption, performance and efficiency. It shall expressly warrant the unconditional compliance of the delivered goods and/or services with the samples, specimens and end-user, but no later than 24 months after acceptance by us. If the Supplier grants longer warranty periods or such longer periods are agreed by an individual contract, these alternative periods shall apply.
The Supplier shall be liable for the goods, specimens, brands etc. delivered by it as being free from third-party rights of all kinds and not infringing the intellectual property rights of third parties, in particular patents or copyright. The Supplier shall further exempt us from product liability claims.
It shall further be liable for the delivered goods complying with all statutory provisions and official requirements. If any provisions of private or public law are infringed, the Supplier shall exempt us from all third-party claims. At our request the Supplier shall furnish us with evidence of its product liability insurance which shall confirm that an adequate sum is insured.
If a claim is made against us by public authorities or competitors because of an infringement by the Supplier or its suppliers of the obligations set forth under 4.1 to 4.4, the Supplier shall exempt us from the costs arising as a consequence. In particular, if prohibited substances are contained in a delivery, a ban according to the provisions of Point5 could be imposed on us placing a product or products on the market. In such an event, the Supplier shall make good all losses, including loss of profits, arising from such a ban.
In the event of litigation, the Supplier shall at its own expense provide legal assistance upon request and exempt us from all costs of our legal representation, including court costs. In addition, the Supplier shall make good all losses arising from reliance on the unrestricted usability of the purchased items or services which are incurred by us and/or our customers.
The Supplier shall make good the loss of our customer only if the customer asserts a relevant claim against us or if the customer is entitled to assert such a claim.
If goods are delivered incorrectly or if goods and/or services are defective, we shall be entitled to demand a price reduction, or replacement delivery or performance, or removal of the defect free of charge, and to exercise the right of rescission. If we exercise said right, the goods and/or services shall be returned to the Supplier at its expense and risk. We shall further be entitled to assert compensation claims for non-performance to the extent permissible by law. We can also, at the Supplier's expense, remove the defect ourselves or have such defect removed in case of urgency. We shall be entitled to consider that the repair or replacement delivery or service has failed if the first attempt to remove the defect does not succeed.
The Supplier shall also be liable for all consequential harm caused by defects, irrespective of both the amount and the ratio of its value to the Order value.
In the event of discrepancies concerning the quantity, dimensions or weight of the delivered goods, the values established by our incoming goods control shall prevail.
The running of the statutory limitation period shall be interrupted by a complaint in respect of defects.
A complaint in respect of defects shall be deemed timely if made without undue delay upon discovery of the defect – but shall be no later than within 18 months of the delivery.
All documents, specimens, models and drawings placed at the disposal of the Supplier by us in connection with an Order or inquiry shall remain our property. It shall keep these in safe custody and treat carefully, shall not give third parties access to them, and shall not use them for third-party purposes.
Said items are to be used exclusively to produce an offer or the purchased goods and/or services.
The Supplier shall be obliged to perform at its own expense any necessary maintenance and inspection work and to adequately insure us furnished items provided in clause 9.1, and to furnish us with evidence of such insurance on request.
Ownership of ordered goods shall pass to us upon notification of readiness for shipment. The Supplier shall hold the ordered goods in custody for us free of charge until transfer. Said held goods shall be segregated from other stocks held by the Supplier. The Supplier shall continue to take the risk of fire, theft or other loss, destruction or deterioration of the goods, until the risk is transferred, and the Supplier shall insure against these risks.
For every statutory and contractual basis for liability (in particular in case of default, contractual violation, impossibility, incapacity, the infringement of obligations during contractual negotiations, or tort), we shall be liable only if the loss is caused willfully or through gross negligence. Even in these cases, the liability shall be restricted to the amount foreseeable by us.
The Supplier is responsible in full and unlimited for personal damages. The liability for personal damages cannot be excluded in any form from the Supplier.
The Supplier undertakes to keep confidential all not publicly known commercial and technical details of which it becomes aware through the business relationship with us. Any sub-suppliers are to be similarly obliged.
The Supplier shall be allowed to cite our company name or trademarks when providing references or in publications only with our prior written consent.
The Supplier shall be obliged to deliver spare parts on reasonable conditions for the period of customary technical use, but for at least 10 years after the most recent delivery. Excluded from this obligation are IT components and systems, for which a time limit of 3 years shall apply (from system acceptance). For PCs, IT equipment and similar devices, the Supplier undertakes to issue a device ID card and to include same with each delivery, so that we shall have an additional means of procuring spare parts.
If the Supplier ceases delivery of the purchased item(s) upon expiry of or during the period stated in clause 12.1, the person ordering shall be given the opportunity to issue a final Order.
The Supplier shall warrant compliance with the provisions of point 5 governing prohibited substances, for spare parts as well. In other words, no goods or services shall contain more than 0.1 weight percent of lead, mercury, hexavalent chromium, polybrominated biphenyls (PBBs) or polybrominated diphenyl ethers (PBDEs) per homogeneous substance or more than 0.01 weight percent of cadmium per homogeneous substance.
If the contract or Order value exceeds € 5,000, we shall be entitled, for each breach of contract by the Supplier, to the exclusion of the principle that multiple acts shall be deemed a unified act if the legal elements of each offence is similar, without prejudice to other individually agreed contractual penalties, to payment by the Supplier of a contractual penalty in the amount of 5 % of the contract or Order value, irrespective of further claims.
The Supplier and we have the consensus intention to oppose any form of corruption.
The Supplier shall at all times comply with all applicable laws, rules and sanctions in relation to anti-corruption. This includes the British Anti- Corruption-Act (UK Bribery Act 2010) but is expressly not limited to this.
The Supplier already has in place or intends to devise, implement and enforce written policies and procedures according to the anti-corruption laws in its company to prevent a violation to anti-corruption laws mentioned in paragraph 15.2.
The Supplier shall ensure that its third party agents, contractors or other persons who are performing services or providing goods on behalf the Supplier in connection with this agreement does so only on the basis of a written contract and in compliance with the conditions mentioned in paragraph 15.1 and 15.2.
Breach of paragraph 15.1 and 15.2 is considered as a substantial breach of this agreement between the Supplier and us and can lead to the cancellation of the contract or immediate termination of the contract by us.
Any breach of paragraph 15.1 and 15.2 entitles us to demand a penalty of up to 10% of the total purchase value. In case of malicious intent or gross negligence the Suppliers’ liability is unlimited in any case. Somebody is acting negligently if he fails to exercise reasonable care. The Supplier is responsible for the fault of his legal representative and any other agent arranged by the Supplier to fulfill his contractual obligations, in the same extent as if it is his own fault. In case of existence of a serialized connection between the contraventions, the penalty is due only once.
We furthermore reserve the right to make further claims for damages, and performance; further claims for warranty and limitations periods shall remain unaffected as well.
The Supplier shall indemnify us from any damages caused by an indebted violation to paragraph 15.1 and 15.2.
The seat of our company shall be the exclusive venue. This shall apply even if the Supplier does not have a general venue in Austria at the time judicial proceedings are initiated. We shall further be entitled to seek redress in any legally competent court.
The law of the Austrian republic shall apply. The UN Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not apply. The Incoterms shall apply as revised from to time.
Our conditions and the contract shall remain valid to the full extent even if individual provisions are legally invalid in other respects. Instead of an invalid provision, the valid provision corresponding closest to the economic content of the invalid provision shall be deemed agreed.
If a provision of the present business conditions or of the contract is invalid giving consideration to mandatory foreign law, the Supplier shall on request agree supplements to the contract and make declarations to third parties or public authorities, so that the provision concerned and thus its economic content remain valid even according to the foreign law.
