1.1. The following terms and conditions (referred to hereinafter as [the] Terms) apply to the sale and the supply of hardware and software in addition to the provision of services and consulting (referred to hereinafter as the Order[s] or the Assignment[s]) on the part of FWI Information Technology GmbH (hereinafter referred to as FWI) to a customer or client (hereinafter referred to as [the] Contract Partner).
1.2 The subject matter of an Order or an Assignment may, in particular, be:
1.3 These Terms apply regardless of whether they are referred to in the Order or the Assignment. They shall also apply to future agreements concluded between FWI and the Contract Partner even if not explicitly referred to and agreed upon.
1.4 The version of these Terms valid at the time the relevant agreement is concluded shall apply thereto. The Contract Partner may view or download these Terms at any time under www.fwi.at. On request, the Terms will also be mailed by FWI.
1.5 These Terms shall not apply to business dealings between FWI and consumers as defined in the Austrian Consumer Protection Act (Konsumentenschutzgesetz).
1.6 Any terms of the Contract Partner which deviate from or supplement these Terms shall not form any part of the agreement between the parties, even if acknowledged by FWI, unless their applicability is explicitly accepted by FWI in writing. Through placing an order with FWI, accepting an offer tendered by FWI, or entering into any other agreement with FWI, the Contract Partner waives any right to apply its terms and conditions, and any defense clause in particular.
1.7 In the event of any deviations from these Terms in the agreement concluded with the Contract Partner, the latter shall take precedence.
1.8 FWI is authorized to amend or supplement these Terms at any time. Such amendments or supplements shall come into effect at the point in time that they are advised to the Contract Partner and shall then apply to all agreements concluded thereafter.
1.9 FWI hereby advises the Contract Partner that personnel of FWI are not authorized to conclude any verbal side agreements or to give any verbal assurances contrary or in addition to the contents of the relevant agreement or these Terms.
2.1 Offers and estimates issued by FWI are always subject to confirmation and non-binding until such point in time as an agreement is concluded with the Contract Partner.
2.2 By placing an Order from FWI, the Contract Partner is making a binding tender to contract.
2.3 An agreement between the Contract Partner and FWI shall be deemed to have been concluded at the point in time when, having received an Order, an Assignment or an offer from the Contract Partner, FWI sends a written confirmation or a delivery to the last address advised by the Contract Partner, or at that point in time when FWI begins to provide the actual services tendered.
3.1 General information
3.1.1 The subject matter of the agreement is the applicable sale, rental, leasing, loan or other legal transaction and/or the provision of the relevant services or consulting by FWI.
3.1.2 The nature and the scope of the goods or services to be supplied or provided by FWI shall be defined in the terms of the relevant agreement concluded.
3.1.3 The selection of personnel appointed to perform services shall be at the discretion of FWI. FWI is authorized to replace the assigned personnel by other personnel with the appropriate qualifications and/or experience. Moreover, FWI is authorized to have services provided by suitably qualified and experienced third parties.
3.1.4 FWI reserves the right to amend or improve the goods or services agreed with the Contract Partner in as far as such changes or improvements are both reasonable vis-à-vis the Contract Partner and are necessary as a result of legal requirements or in order to take into account the interests of FWI.
3.1.5 In the event that FWI provides services or performances free of charge, FWI retains the right to suspend doing so at any time and without advance notification.
3.1.6 In as far as FWI acquires rights to the outputs of its work in the course of providing services, FWI shall accord the Contract Partner the simple, non-assignable and non-exclusive authorization to make use of these outputs at its facilities following complete payment. All other rights associated with the outputs of its work shall be retained by FWI. The Contract Partner is, in particular, not authorized to permit third parties to make use of these outputs, to award sublicenses, or the modify or further develop the outputs of the work performed by FWI.
3.2 Special terms for third-party software (standard software)
3.2.1 In the event that the Contract Partner of FWI also acquires licensed software from third parties, the use of this software is also subject to compliance with the licensing terms (rights of use) transferred by FWI. By ordering this licensed third-party software, the Contract Partner confirms their understanding of the scope of performance and the licensing terms of this software.
3.2.2 The delivery of standard software shall be in accordance with the terms agreed on a caseby-case basis. In case of doubt, the Contract Partner is awarded only non-exclusive, nonassignable rights of use for an indefinite period. Rights of use to standard software acquired on the basis of the payment of a regular license fee for these rights shall revert to FWI in the event that the appropriate agreement is suspended, or in the event that the Contract Partner falls into arrears with the payment of the license fee despite being given written notification of a respite period.
3.2.3 With regard to software procured by FWI from third parties and licensed on to the Contract Partner, the parties to these Terms agree to an exclusion of any warranty or liability on the part of FWI, particularly for software bugs. FWI shall be required, however, to assign any claims it is entitled to assert vis-à-vis its supplier to the Contract Partner.
3.2.5 When providing software to be processed, modified or further developed by FWI, the Contract Partner implicitly confirms that it has the rights to engage in such processing, modification or further development work.
3.2.6 The Contract Partner shall fully indemnify and hold FWI harmless against any claims arising out of any violation of the above obligation.
3.3 Special terms relating to software developed by FWI (bespoke software)
3.3.1 In the case of bespoke software developed by FWI, the scope of performance of such shall be defined in the relevant agreement by means of a description of the supplies and services entailed. The delivery shall encompass the source code executable on the systems described and a program description. The rights to the programs and the documentation shall be fully retained by FWI. In case of doubt, the Contract Partner is awarded only non-exclusive, non-assignable rights of use for an indefinite period. Rights of use to software acquired on the basis of the payment of a regular license fee for these rights shall revert to FWI in the event that the appropriate agreement is suspended, or in the event that the Contract Partner falls into arrears with the payment of the license fee despite being given written notification of a respite period.
3.3.2 The Contract Partner acknowledges that minor bugs in the software cannot be entirely excluded given the subject matter of the agreement. In as far as this is not explicitly defined otherwise in the agreement, FWI shall offer no warranty nor accept any liability for (i) the delivered software meeting all of the requirements of the Contract Partner; or (ii) the compatibility of the delivered software with other programs of the Contract Partner; or (iii) that the programs run without interruptions and free of errors (bugs); or (iv) that all software errors (bugs) can be fixed.
3.3.3 Specifically excluded from the warranty offered and the liability accepted by FWI shall, in particular, be errors as a result of improper installation on the part of the Contract Partner or a third party, as a result of unsuitable operating conditions as well as atmospheric or static discharges, due to wear and tear, inappropriate operation, changes to operating system components, interfaces or parameters, due to the use of unsuitable system aids and data media, the improper operation of software on the part of the Contract Partner or a third party, and attributable to the shipping of the goods.
3.3.4 The warranty is restricted to reproducible (continuously recurring) bugs in the program’s functionality.
3.3.5 In the event that FWI supplies hardware and software at the same time, any bugs in the software shall not entitle the Contract Partner to also withdraw from the agreement covering the use and supply of the hardware.
3.4 Special terms for firewalls and/or virus walls
3.4.1 In the case of firewalls or virus walls installed, operated or tested by FWI, FWI shall be required to proceed with the greatest possible degree of due care and on the basis of the latest technical knowledge (state-of-the-art). However, FWI explicitly makes clear that absolute security and the full functionality of firewalls / virus wall systems cannot be guaranteed. Any liability on the part of FWI for any loss or disadvantage as a result of any circumvention or deactivation of firewall / virus wall systems installed, operated or tested at the Contract Partner, as well as any system failures or access problems, is therefore excluded.
3.5 Special terms for the provision of services
3.5.1 FWI offers its services with a view to ensuring the highest possible levels of care, reliability and availability. For technical reasons, however, it is not possible for these services to be provided entirely without interruption, for the desired connections to also be maintained or available, or for stored data to remain stored under all conceivable circumstances. The constant availability of the connections and, consequently, that of the services dependent on these connections, cannot be guaranteed by FWI, and are not within FWI’s sphere of influence. IP connectivity with other network operators is limited to the possibilities available.
3.5.2 FWI accepts no liability for any problems caused by the networks of third parties.
3.5.3 The use of third-party networks is subject to the technical, legal and/or commercial limitations of use of the relevant third party (Acceptable Use Policy).
3.5.4 The Contract Partner is required to comply with all relevant legislation (in particular the Austrian Pornography Act [PornoG], the Austrian National Socialism Prohibition Act [VerbotsG], the Austrian Data Protection Act [DSG 2000], the Austrian Telecommunications Act [TKG 2003], the Austrian Media Act [Mediengesetz], the Austrian Copyright Act [UrhG] and the Austrian Unfair Competition Act [UWG]) which regulate the transmission, distribution and display of certain contents, and to accept sole responsibility for the compliance with this legislation vis-àvis all third parties.
3.5.5 In cases involving well-founded suspicion that the above obligations are not being fulfilled, FWI reserves the right to remove these contents without delay, to block access to these, or, in as far as no other means are adequate, to restrict or block internet access. In such cases, the remaining contractual obligations of the parties shall remain unaffected and unchanged.
3.5.6 The Contract Partner agrees to fully indemnify and hold FWI harmless in the event of claims asserted against FWI on the grounds of contents distributed by the Contract Partner. In the event of such claims asserted against FWI, FWI alone may decide how it responds without entitling the Contract Partner responsible for the contents in question to lodge any objections on the grounds of inadequate legal defense.
3.5.7 FWI is authorized to immediately cancel the Order and/or interrupt or terminate the provision of services if the conduct of the Contract Partner, or persons acting on the behalf of the same, make it unreasonable to maintain the contractual relations as they stand, particularly if the Contract Partner violates its obligations in terms of the above terms or refuses to respond to a request to remove offending or unauthorized systems from the network connection without delay.
3.5.8 All such cases of immediate cancellation of the Order or the interruption or termination of the provision of the service shall have no bearing on the entitlement of FWI to claim remuneration for the contracted period up until the next termination deadline, and to assert claims for compensation as a result of the violations of the Contract Partner. The decision as to whether to cancel the Order or terminate the Assignment, on the one hand, and simply interrupting or terminating the provision of the service, on the other, is entirely at the discretion of FWI.
3.5.9 The Contract Partner acknowledges that FWI is not obligated without restriction to transmit data. No such obligation shall in any case exist if FWI would itself be liable to legal persecution were it not to do so.
3.5.10 FWI shall not be held liable for contents transmitted by a third party via its network or those through which the network services of the subscriber or third parties are made accessible.
3.5.11 FWI reserves the right to impose restrictions due to its own capacity limits. Cases of force majeure, strikes, restrictions on the availability of the services of other network operators or in the case of repair or maintenance work may entail restrictions or interruptions involving the availability of internet services.
3.5.12 Moreover, unless otherwise agreed in writing, the monthly data transmission limit or a fair-use principle as set out in the relevant agreement or in the annexes thereto shall apply. Should a monthly data limit be exceeded, FWI reserves the right to either invoice the Contract Partner the valid rates in such cases based on the current price list, or to interrupt the service. In the event of any exceeding of the data limit under a fair-use agreement, FWI shall request that the Contract Partner reduces its data transfer appropriately. If no appropriate reduction in data traffic occurs, the Contract Partner will either be offered an alternative pricing model or the service will also be interrupted.
3.5.13 FWI shall not be liable for the content of transmitted data or for the content of data accessible via the contracted services of FWI, even in the event that the access to such data is via a link on the FWI website.
3.5.14 The use of the contractual services by third parties in addition to the provision of these services to third parties in return for remuneration is subject to the explicit written approval of FWI.
3.5.15 The Contract Partner is obligated to treat its passwords as confidential. The Contract Partner shall be liable for any losses or damage as a result of any failing to maintain the confidentiality of the passwords.
3.5.16 The costs of the use of transmission equipment up to the selected point of presence, the costs incurred at the premises of the Contract Partner, and the costs of equipment used solely by the Contract Partner at the point of presence provided by FWI are not included in the prices and rates quoted. Likewise not included are any third-party costs or expenses invoiced for the use of services which are accessed via the connection at the point of presence.
3.6 Special terms for domain registration
3.6.1 FWI shall act as an agent and reserve the requested domain in the name and on the account of the Contract Partner provided that the requested domain has not already been assigned. For .at, .co.at and .or.at URLs, applications will be made to the nic.at registration centre; other domains will be registered with the relevant competent registration center.
3.6.2 The contractual arrangement for the setting up and management of the domain always exists directly between the Contract Partner and the registration center, even in those isolated cases in which FWI handles billing arrangements for the registration center. The registration fee, which is passed on to the registration center, is contained in the amounts billed to the Contract Partner by FWI (in as far as this is not agreed otherwise).
3.6.3 The Contract Partner acknowledges that the agreement between the registration center and the Contract Partner does not expire automatically when the agreement with FWI expires or is terminated, and that the Contract Partner is therefore responsible for terminating this agreement with the registration center directly.
3.6.4 The general terms and conditions of the competent registration center therefore apply to the domain; a copy of these will be sent to the Contract Partner by FWI on request.
3.6.5 FWI is not obligated to assess the permissibility of the domain in terms of the legal status of trademarks or brand names for example. The Contract Partner commits to respect the relevant legal provisions and, in particular, not to infringe upon the registered rights of third parties and to fully indemnify and hold FWI harmless in connection with any related claims.
3.6.6 The Contract Partner is required to inform FWI of any configurations, in particular MX and WWW records, of any existing domains which are re-registered. Claims for compensation arising out of errors involving the abovementioned information cannot be asserted against FWI.
3.7 Special obligations of the Contract Partner
3.7.1 The Contract Partner is obligated to provide FWI with all of the details and information necessary for the provision of the contractually agreed services. FWI is not obligated to assess the logic of this information (accuracy, completeness, etc.). In the event of additional work on the part of FWI as a result of incorrect or incomplete information, or for any other reason attributable to the Contract Partner, then this additional work will be billed separately by FWI at the relevant applicable hourly rates.
3.7.2 On request, the Contract Partner shall be required to provide FWI with all spatial (e.g. office) and technical infrastructure necessary for the provision of the contractually agreed services in as far as the provision of these services takes place at the Contract Partner’s premises.
3.7.3 In the event that a service on the part of FWI cannot be provided or cannot be provided in a timely manner for reasons attributable to the Contract Partner, in particular as a result of the Contract Partner failing in its obligation to cooperate, or to report bugs or errors in good time, or in the event that deadlines are not met by the Contract Partner, then the Contract Partner shall be liable for reimbursing FWI for the additional work caused as a result thereof. In such a case, the agreed deadlines for the provision of the services to be provided will be extended in accordance with the extent to which the delay or delays is/are attributable to the Contract Partner.
4.1 Agreements concluded between FWI and the Contract Partner covering the ongoing sourcing of services or other continuing obligations (e.g. servicing relating to the processing of information by computer centers, internet services, rented software, etc.) are concluded for a defined or an undefined period of time.
4.2 In the event of a contractual relationship for a defined period of time, this arrangement shall prolong automatically by a period equivalent to the original term of the agreement unless notice to terminate the agreement, subject to a three-month notice period, is served by one contractual party. If no agreement relating to a waiving of termination rights is concluded, agreements concluded for an undefined period of time may be terminated in writing subject to a three-month notice period from the end of any given month. The following termination rights held by FWI in the case of delayed payment on the part of the Contract Partner set out in these Terms shall not be affected thereby.
4.3 An agreement may be terminated by either party thereto in writing, at any time, and with immediate effect, where good cause exists. Good cause entitling FWI to terminate an agreement immediately shall be deemed to exist, in particular, (i) if the Contract Partner fails to meet its payment commitments despite a written reminder and the setting of a respite period of 20 (twenty) days; (ii) if the Contract Partner provides incorrect details regarding its commercial situation or assets at the time of concluding the agreement or omits to provide this information, had FWI known of which it would not have concluded the agreement; (iii) in the event of the liquidation of the Contract Partner; (iv) in the event of any use of services in violation of existing legislation; (v) if the Contract Partner violates contractual terms intended to maintain the functionality of the network or services, or which serve to protect the rights of third parties; (vi) in the event of a significant deterioration in the commercial or financial situation of the Contract Partner, in particular, any establishment by an auditor of a need for restructuring of the Contract Partner company, declarations of a cessation of payments, the commencement of insolvency proceedings or a dismissal of such proceedings on the grounds of a lack of assets, the presentation of a list of assets in court, or out-of-court judicial composition proceedings; or (vii) in the event of a severe violation of material contractual obligations.
4.4 FWI is authorized to suspend the provision of certain services if their provision is no longer possible or commercially reasonable on grounds which do not lie within FWI’s sphere of influence.
4.5 Meeting the agreed payment deadlines is a material condition for the performance of services on the part of FWI. FWI is therefore entitled, at its discretion, to either suspend the provision of services or to terminate the contractual agreement with immediate effect in the event of a delay in payment despite a written payment reminder and the setting of a respite period of three weeks.
4.6 FWI is also authorized to immediately terminate the agreement or to interrupt or discontinue the provision of services if the conduct of the Contract Partner, or persons acting on behalf of the same, make the continuation of the contractual arrangements unreasonable, in particular if the Contract Partner violates its obligations. The decision as to whether to terminate the agreement, on the one hand, or simply interrupting or terminating the provision of the service, on the other, is entirely at the discretion of FWI.
4.7 All cases of the immediate termination of the agreement, a service interruption or discontinuation of service provision on grounds which lie within the sphere of influence of the Contract Partner shall have no bearing on the rights of FWI to claim remuneration for the term of the agreement until the next scheduled termination date, nor on FWI’s right to assert claims for compensation.
4.8 The Contract Partner is hereby notified that, following termination of the contractual arrangements, for whatever reason or reasons, FWI shall no longer be obligated to continue providing the agreed services. FWI is therefore entitled to delete stored data or content data available on request. The timely requesting of such content data prior to the termination of the contractual arrangements is therefore the sole responsibility of the Contract Partner. No claims of any kind may be asserted against FWI by the Contract Partner as a result of the deleting of data.
5.1 The delivery date of the services provided by FWI or the delivery date for the supply of hardware and software shall be determined in accordance with the terms of the relevant agreement.
5.2 All circumstances which do not lie within the sphere of influence of FWI, e.g. stoppages or restrictions on the supply of manufacturing materials relating to FWI or its suppliers, shall qualify as force majeure. The occurrence of such circumstances shall correspondingly prolong the agreed deadlines for the provision of the services or the delivery of the goods, and shall not entitle the Contract Partner to withdraw from the agreement nor to assert other claims of any kind against FWI.
5.3 The Contract Partner is responsible for securing the official approvals and any other thirdparty approvals necessary for the shipment or the provision of the goods or services covered by the agreement. Should such approvals not be obtained in good time, the agreed deadlines for the provision of the services or the delivery of the goods shall be prolonged accordingly; the Contract Partner shall not be entitled to withdraw from the agreement nor to assert other claims of any kind against FWI.
5.4 Should the delivery of the goods or the provision of the services not be possible for the reasons listed under points 5.2 and 5.3 above, FWI shall have the right to withdraw from the agreement without entitling the Contract Partner to assert any claims of any kind as a result thereof. This also applies in the event that the named circumstances first arise during a previously existing delay.
5.5 Modifications requested by the Contract Partner following the placement of the Order or the awarding of the Assignment shall entail a corresponding extension to the agreed deadlines.
5.6 In the event of Orders covering several units, FWI is authorized to undertake part or predeliveries and to issue invoices after the delivery of every single unit or the rendering of each service.
5.7 FWI shall be considered to provide all services from its registered offices or premises. Shipments are always dispatched on instruction, on account, and at the risk of the Contract Partner. At the request and expense of the Contract Partner, FWI shall take out shipping insurance cover for the goods.
6.1 The prices and rates payable by the Contract Partner will be defined in the relevant Order or Assignment. In as far as is not otherwise agreed therein, the prices quoted are understood to be ex FWI premises and to be exclusive of VAT and other charges, packaging, shipment and installation costs.
6.2 In addition to the prices set out in the Order or Assignment, the Contract Partner shall be required to reimburse FWI for all cash advances and expenses (e.g. mileage allowances, travel expenses, costs of accommodation) at the relevant applicable rates. Travelling time is charged at the same rates as working time.
6.3 Amounts payable regularly shall increase in line with the change in the Austrian Consumer Price Index (VPI 2005) of the figure for January of the year in question relative to that for January of the preceding year. Such indexing shall take effect on the first of January of each calendar year. The index figure for January 2007 shall serve as the initial basis. Deviations of up to 3% shall not be taken into account. FWI may elect to waive its right to increase the amounts due on the basis of a change in the index. This shall have no bearing, however, on the permissibility of future index-based changes.
6.4 In the event that the Contact Partner requests services to be performed outside of normal working hours, surcharges of 100% on the basis of the hourly rates agreed in the Assignment shall be payable for these services.
6.5 In as far as no Order or Assignment contains deviating terms, invoices issued by FWI are payable in full within 14 (fourteen) days of the invoice date. Payments shall be considered to have been rendered on the day on which FWI has the funds at hand. The same terms of payment shall apply to part-payments as those for the entire Order or Assignment.
6.6 The offsetting of demands asserted by the Contract Partner against amounts owned to FWI, the retention of payments on the grounds of claims on the part of the Contract Partner asserted against but not recognized by FWI, and any withholding of contractual performances by the Contract Partner are explicitly excluded.
6.7 Certain amounts due as remuneration are made up of, in particular, telecommunication and server costs, interconnection charges, energy costs, personnel expenses, property-related costs, fees and taxes. FWI retains the right to amend the agreed rates and prices accordingly in the event of any changes in these costs, expenses or charges relevant to the calculation of the former. Moreover and irrespective of any rights to assert claims for compensation and/or to prematurely terminate the agreement, FWI retains the right to revise its rates and/or prices at any time in the event of an unusually high request rate involving the website of the Contract Partner hosted by FWI or in response to unusually high data traffic in the case of the Contract Partner’s unlimited internet access. FWI shall be required to advise the Contract Partner in the event of price changes; the Contract Partner has the right to terminate the agreement within two weeks of receiving the notification of the price change; failure to do so shall be interpreted as an acceptance of the price change.
7.1 In the event of default in payment, FWI is entitled, without prejudice to other rights it holds, (i) to delay the fulfillment of its own obligations until the payment or other performance due is received, and (ii) to take advantage of the right to impose an appropriate postponement on delivery deadlines, and (iii) to declare due and payable all open receivables arising out of this and all other business with the Contract Partner, and (iv) to charge interest on arrears at a rate of 12% p.a. from the due date for the unpaid amounts in as far as FWI does not establish that additional costs have been incurred, and (v) to withdraw from the agreement if an appropriate respite period is not respected.
7.2 In the event that part-payments are agreed upon, FWI is entitled, in the case of a failure to pay the second installment in time, to insist on the payment of the entire amount due.
7.3 In the event of its falling into arrears with payments, the Contract Partner is obligated to reimburse FWI all the dunning and debt collection expenses of an attorney or a debt collection agency incurred, in addition to all other incidental expenses associated with the payment in arrears.
8.1 Goods and software delivered shall remain the unrestricted property of FWI until such time as all of the receivables due to FWI arising out of the business relationship with the Contract Partner have been settled in full. The Contract Partner shall not be entitled to pledge goods subject to retention of title or to use these as collateral.
8.2 In the event of default in payment, any impending cessation of payments, or in the event of judicial foreclosure against the Contract Partner, FWI shall be entitled to de-install and/or otherwise repossess goods subject to retention of title without this constituting a withdrawal from the agreement. The Contract Partner shall be obligated to surrender the goods.
8.3 In the event of any seizure, distraint or other claims asserted against the goods subject to retention of title by third parties, the Contract Partner shall be obligated to point out the ownership rights of FWI and to advise the same without delay. All of the costs incurred by FWI in connection with such interventions on the part of third parties shall be reimbursed by the Contract Partner.
9.1 FWI shall in principle only guarantee that the goods supplied comply with the contractually agreed specifications at the time of their delivery.
9.2 The warranty period extends for a period of 12 (twelve) months from the point in time of the delivery of the goods or the provision of the services. The Contract Partner shall be required to establish the applicability of the warranty period.
9.3 Recognizable faults (referring here to any shortcomings, errors, bugs, deficiencies or the like) are to be advised to FWI immediately after the goods or services have been transferred to the Contract Partner, or immediately after they become recognizable in the case of hidden faults. Such notifications to FWI are to be made in writing and to include a detailed description of the fault. The Contract Partner shall be responsible for establishing that the fault was notified to FWI in a timely manner. If a complaint on the basis of a fault is not lodged in a timely manner, the goods or services shall be deemed to have been irrevocably accepted and found to be in order.
9.4 In the event that complaints are lodged in a timely manner, FWI shall initially be required to redress these. Should FWI fail to redress the situation or if it regards this as commercially unviable, then an appropriate price reduction is to be decided upon. A rescission of sale by the Contract Partner is not permitted.
9.5 The Contract Partner is always required to provide evidence that the fault associated with the goods supplied or the services provided already existed at the time of their transfer to the Contract Partner.
9.6 A right of recourse against FWI pursuant to §933b of the Austrian Civil Code (ABGB) is hereby excluded.
10.1 With the exception of personal injury, FWI shall only be liable for damage or losses as a result of intent or gross negligence.
10.2 FWI shall accept no liability for any and all losses or damage involving data or information, business interruption losses, loss of earnings, indirect costs, frustrated expenses and other consequential losses in as far as this is legally permissible.
10.3 Claims for damages asserted by the Contract Partner against FWI shall lapse one year after the delivery of the goods or the provision of the services concerned.
10.4 Any possible liability on the part of FWI vis-à-vis the Contract Partner shall be limited in all cases to the value of the Order or the Assignment.
10.5 Any claims for recourse asserted by the Contract Partner or third parties against FWI on the grounds of product liability, as defined by the Austrian Product Liability Act (PHG), shall be excluded unless the party asserting the claim establishes that the fault was caused by FWI or was the result of at least gross negligence on the part of FWI.
11.1 FWI is authorized to store, process and pass on personal data in the course of fulfilling the Order or Assignment, and for the purposes arising out of the Order or the Assignment, subject to compliance with the relevant data protection provisions (in particular those of the Austrian Data Protection Act [DSG 2000] and §§ 92 ff of the Austrian Telecommunications Act [TKG]). The Contract Partner shall not derive any legal rights from the passing on of data on the grounds of legal obligations.
11.2 FWI shall employ the state-of-the-art, industry-standard, data security measures required by the Data Protection Act. FWI shall accept no further liability.
11.3 The Contract Partner acknowledges and accepts that FWI requires relevant traffic data for the purposes of fulfilling the Order or the Assignment, and for its consulting and further development work, and for the marketing of its own services, for needs analysis purposes and for the planning of the network extension. This permission may be revoked at any time.
11.4 Within the scope of the relevant legal provisions, FWI will also process data using computerized systems and, once the contractual arrangements have expired or been terminated, will delete these data in as far as their ongoing storage is not required in order for FWI to fulfill its legal obligations. The Contract Partner shall permit FWI to include his/her name or that of his/her company in its list of reference customers.
11.5 The Contract Partner acknowledges that FWI is not obligated nor entitled to store and make available for an indefinite period of time defined content data (from third parties) on behalf of the Contract Partner. If the Contract Partner does not retrieve such data within a period of three working days, FWI shall not be required to accept any liability for the continued retrievability of these data.
FWI will employ all technically possible and reasonable steps to ensure the protection of the data it stores. It shall not, however, be responsible for any access to the data by third parties achieved by illegal means. In order to ensure the necessary protection of the data, the Contract Partner is obligated to maintain the confidentiality of passwords. The Contract Partner shall be liable for any losses or damage as a result of any violation of this obligation. In as far as nothing to the contrary is agreed, the Contract Partner shall be responsible for storing its own data. FWI recommends that the Contract Partner make use of a firewall and a virus wall system.
13.1 Salvatory clause
In the event that certain provisions contained herein should be or become ineffective, invalid and/or unenforceable, this shall have no bearing on the effectiveness, validity and/or enforceability of the remaining provisions contained in these Terms. The ineffective, invalid and/or unenforceable provision is to be replaced by an effective, valid and/or enforceable provision which as closely as possible serves the commercial purpose of the original provision. This also applies to the addition of any provisions in the event of contractual loopholes.
The Contract Partner is required to treat the conclusion of an agreement as confidential. FWI shall have the right to refer to the Contract Partner using its company name, logo and URL on the FWI website and in other promotional materials. Reference stories and other references to business ties with FWI are subject to mutually granted written approvals. The Contract Partner is obligated to regard all non-obvious commercial and technical details it becomes a party to in the course of its business ties with FWI as the commercial secrets of FWI, and to treat these as strictly confidential. Personnel and other persons working on behalf of the Contract Partner are also to be appropriately committed to respect the confidentiality of this information.
13.3 Non-solicitation clause
The Contract Partner commits, for the term of the agreement and for a period of 12 (twelve) months thereafter, to neither directly nor indirectly employ or solicit away any FWI personnel or other third parties working on behalf of FWI in the fulfillment of the agreement with the Contract Partner. Any and all violations of this commitment shall make the Contract Partner liable to pay a contractual penalty in favor of FWI in the amount of one year’s gross annual salary of the employee in question. FWI retains the right to claim damages in excess of this contractual penalty.
13.4 Legal succession
FWI is entitled to assign the rights and obligations arising out of contractual arrangements with the Contract Partner to any company in which FWI holds an interest of at least 50%. The Contract Partner shall not, in the event of such an assignment, be entitled to terminate any existing contractual arrangements.
All declarations, notifications, etc. addressed to FWI must be made in writing and include a written signature in order to be legally valid. Any agreements to amend the above requirements must be made in writing. Oral side agreements shall be invalid.
13.6 Place of performance, venue and applicable law
The place of performance is Steyr, Austria. Any disputes arising out of an agreement concluded between FWI and the Contract Partner, including any relating to the existence or non-existence of such an agreement, shall be settled before the competent court of law in Steyr, Austria. Austrian law alone shall apply to legal interpretations of this Agreement, with no resort to conflict of law rulings requiring the application of another legal system, nor to the United Nations Convention on Contracts for the International Sale of Goods.
13.7 Changes of address
The Contract Partner is required to notify FWI without delay of any changes in its business address. Correspondence shall be considered to have been received by the Contract Partner if this is sent to the last address advised by the same.
1.1 These software license terms (hereinafter referred to as [the] License) apply to the FWI Software including user documentation, and for all related updates and further developments (hereinafter referred to as [the] Software) supplied to a customer (hereinafter referred to as [a/the] Licensee) by FWI Information Technology GmbH (hereinafter referred to as FWI).
1.2 The conclusion of the License relating to the provision or the download of the Software or the installation, previous installation or the use of the Software by the Licensee shall constitute acceptance of these software license terms by the Licensee.
2.1 On the grounds of this agreement, the Licensee shall acquire from FWI the non-exclusive and non-assignable right to use the Software in connection with the commercial operations of its company and/or those of any company or companies in which the Licensee holds more than a 50% interest (hereinafter referred to as [the] Affiliated Companies).
2.2 The Licensee shall be permitted to use only that number of copies of the Software simultaneously, and/or to provide the Software only to that number of individuals, equivalent to the number of Licenses to the Software acquired.
2.3 The source code shall not be covered by this agreement.
2.4 The Licensee shall have the right to duplicate the Software in order to install it within the company’s network and on an unlimited number of workstations and to load and enable the Software to be run.
3.1 Other than the usufruct rights assigned under Point 2 above, the Licensee shall be prohibited from providing the Software to any third parties in the absence of more comprehensive rights assigned and specifically authorized in writing by FWI.
3.2 Any modifications or changes to the Software performed by the Licensee are only permitted in mandatory, legally prescribed cases for the purposes of addressing errors (bug fixing) or in order to establish interoperability with other computer programs. The Licensee shall be required to inform FWI in writing and without delay of any need to make modifications or changes in this connection. Moreover, the Licensee commits to appoint FWI to undertake the changes or modifications and shall in return pay the same a commensurate amount. In the event that FWI fails to accept the assignment within two weeks and on reasonable terms, the Licensee shall be authorized to either itself undertake the changes or modifications or to appoint a third party to do so.
3.3 The Licensee shall not be authorized to decompile the object code in order to obtain the source code nor to engage in reverse engineering or decompilation other than in cases in which this is necessary in order to establish interoperability or to ensure that bugs are fixed in as far as FWI fails to undertake the changes in return for a commensurate fee despite the same being informed in writing of the existing need therefor. Otherwise, the provisions set out under Article 40e of the Austrian Copyright Act (Urhebergesetz) shall apply.
3.5 The Licensee shall not be authorized to prepare copies or parts thereof of the user documentation or to provide such to third parties.
3.6 In as far as the Licensee is authorized to exchange hardware, the same commits to completely and irrevocably remove the Software from the exchanged devices.
3.7 The Licensee shall ensure that copies of the Software are stored safely and securely and take all necessary precautions in order to prevent the said Software falling into the hands of third parties. In this context, the Licensee commits to maintain a full and current list of all copies of the Software in its possession and their precise storage locations. This list is to be provided to FWI on request for inspection purposes.
3.8 The Licensee shall be obligated to refrain under any circumstances from removing or manipulating the copyright notices and the certification marks of FWI on the copies of the software and/or the user documentation.
4.1 The Licensee shall be obligated to inspect the Software and the user documentation with regard to its completeness and functionality, as defined by Article 377 of the Austrian Commercial Code (UGB), immediately after receipt and within a period of five working days.
4.2 In as far as deficiencies or defects are identified in the course of the inspection as set out under Point 4.1, the Licensee shall be obligated to issue a written complaint to FWI without delay and clearly specifying the defect or deficiency identified.
The rights of the Licensee to use the Software shall be for an indefinite period of time but may be terminated by FWI with immediate effect should the Licensee or an Affiliated Companies fail to comply with the terms of this agreement.
6.1 The Licensee acknowledges that it is currently not technically possible to develop computer programs which operate error-free under all application conditions. FWI can therefore only guarantee that the Software essentially complies with the specification requirements and performs the functions described therein in the specified system environment. FWI provides no additional assurances, in particular with regard to the Software meeting other requirements of the Licensee, or offers interoperability with other programs in the configuration selected.
6.2 In the event of claims covered by the warranty, FWI shall be obligated to re-deliver or modify the Software as it sees fit. In as far as these options are not appropriate for the purposes of rectifying the deficiency or defect and in cases where two attempts to rectify the issue have failed or are not carried out within a reasonable period of time, the Licensee shall have the right to reduce the license fee. The Licensee shall not be authorized to assert any additional claims.
6.3 The Licensee shall forfeit all warranty rights in the event of their independently changing or modifying the Software.
6.4 FWI guarantees that the Software is free of any third-party copyrights which constrain or prohibit the contractually agreed usage of the Software. The parties hereto shall inform each other without delay and in writing in the event of any claims pertaining to the infringement of third-party copyrights being asserted against them. These warranty terms shall not apply in the event of any infringement of third-party copyrights as a result of any acts on the part of the Licensee other than the contractually conform use of the Software or as a result of any modifications to or further development of the Software (also in combination with the work of third parties) undertaken independently by the Licensee.
6.5 The deadline for any claims asserted by the Licensee in connection with any infringement of warranty-related assurances shall be 12 months from the day upon which the software is shipped irrespective of the obligation to inspect the Software as defined under Point 4.1 above. The Licensee shall always bear the burden of proof with regard to establishing that a software error is attributable to a deficiency or defect.
6.6 Regardless of the legal grounds, FWI shall accept no liability for the integrity of the Software or for any losses incurred as a result of the Software beyond the obligations defined under the abovementioned warranty obligations and beyond the scope of the Austrian Product Liability Act (Produkthaftungsgesetz). Any such claims on the part of the Licensee, such as any claims relating to loss of earnings, losses incurred on the grounds of third-party claims, indirect and consequential losses as well as damage to or the loss of stored data, are hereby excluded in as far as the Licensee does not establish that FWI is accountable for such losses on the grounds of malicious intent or gross negligence. In cases of gross negligence, the liability of FWI (with the exception of personal injury and atypical losses) shall in all cases be limited to the net purchase price paid by the Licensee for the Software. All claims on the part of the Licensee shall expire unless legally asserted within one year of their becoming aware of the loss and the cause.
6.7 FWI shall accept no liability for changes or other modifications to the Software undertaken by the Licensee itself or by third parties. Furthermore, FWI shall not be liable for any losses as a result of external factors, including other programs or as a result of the integration of the Software in the hardware and software environment of the Licensee or due to the interaction between the Software and this environment.
7.1 The Licensee commits to respect and maintain the confidentiality of the Software and the user documentation, as well as the expertise made available by FWI, and other commercial secrets (hereinafter referred to as [the] Confidential Information), refraining in particular from making this available to third parties, and to only use the same in the context of this agreement.
7.2 For this purpose, the Licensee commits to optimally store all documentation and data media which contain the Confidential Information of FWI, to require all personnel with access to the said Confidential Information to respect the confidentiality thereof, and to provide evidence thereof. The Licensee commits, in particular, not to make the Software or parts thereof available to third parties, neither as the object code or the source code, nor any associated documentation.
7.3 Confidentiality shall not apply to any information which was committed to writing prior to the conclusion of this agreement which was already in the public domain on the grounds of publications by third parties without the involvement of the Licensee. The burden of proof with regard to the applicability of this exception shall be borne by the Licensee.
8.1 Applicable law
This agreement shall be governed exclusively by Austrian Law under exclusion of the conflict rules as well as the UN Convention on Contracts for the International Sale of Goods.
Any and all legal disputes arising out of this agreement, including questions pertaining to its formation, validity, termination or nullification, shall be settled solely before a competent court of law in the district where FWI has its registered offices.
8.3 Legal costs
Any legal fees associated herewith shall be borne exclusively by the Licensee.
8.4 Written form requirement
This agreement is conclusive. No verbal side agreements, regardless of their form, exist at the point in time of the conclusion of this agreement. Amendments to this agreement and any waiver to the written form requirement are to be committed to writing.
8.5 Severability clause
In the event that one or several of the terms or clauses of this agreement should later be determined to be partially or entirely invalid, or should a loophole later be ascertained, this shall have no bearing on the remaining terms of this agreement. The parties to this agreement are obligated to agree on a term or clause to replace the invalid term or clause, or to redress the loophole, in a manner which as closely as possible represents the original intention of this agreement.