1. Scope and validity of the contract

All orders and agreements shall be legally binding only if signed in writing and in accordance with the company name by the contractor (“D3EIF GmbH”), and shall obligate the parties only to the extent stated in the order confirmation. The purchaser’s terms and conditions and general terms and conditions of the client (“Customer”) are hereby excluded for the transaction in question and the entire business relationship. Offers are generally non-binding and subject to change.

2. Services and acceptance testing

2.1.      The subject matter of an order may include:

– Preparation of organisational concepts

– High-level and detailed analyses

– Development of custom software

– Delivery of library (standard) software

– Acquisition of rights of use for software products

– Acquisition of licences for work usage rights

– Support during commissioning (migration support)

– Telephone consulting

– Software maintenance

– Creation of program media

– Making accessible and providing online platforms (online service), e.g. “Drip”

– Other services

2.2.      The development of individual organisational concepts and programs shall be based on the type and scope of the binding information, documents and tools fully provided by the client. This also includes practical test data and sufficient testing options, which the client shall provide in due time, during normal working hours and at its own expense. If the client already works in live operation on the system made available for testing, the client shall be responsible for securing the live data.

2.3.      The basis for the development of custom software is the written specification, which the contractor prepares for a fee on the basis of the documents and information made available to it, or which is provided by the client. The client must review this specification for correctness and completeness and confirm its approval. Change requests arising later may lead to separate scheduling and price agreements.

2.4.      Individually developed software and/or program adaptations require acceptance of the respective program package by the client no later than four weeks after delivery. This shall be confirmed by the client in a protocol. (Review for correctness and completeness based on the specification accepted by the contractor using the test data provided as set out in Section 2.2.) If the client allows the four-week period to pass without acceptance, the delivered software shall be deemed accepted as of the end date of that period. If the software is used in live operation by the client, the software shall in any case be deemed accepted.

Any defects that arise, i.e. deviations from the specification agreed in writing, must be reported by the client to the contractor with sufficient documentation; the contractor will endeavour to remedy defects as quickly as possible. If material defects are reported in writing, meaning that live operation cannot be started or continued, acceptance must be repeated after the defects have been remedied.

The client is not entitled to refuse acceptance of the software due to minor defects.

2.5.      When ordering library (standard) software and online services, the client confirms by placing the order that it is aware of the scope of services of the ordered programs and/or online platforms.

2.6.      If, during the course of the work, it becomes apparent that performance of the order in accordance with the specification is actually or legally impossible, the contractor shall be obliged to notify the client immediately. If the client does not amend the specification accordingly or create the conditions that make performance possible, the contractor may refuse performance. If the impossibility of performance is the result of an omission by the client or a subsequent change to the specification by the client, the contractor is entitled to withdraw from the order. The client shall reimburse the costs and expenses incurred by the contractor up to that point as well as any dismantling costs.

2.7.      Shipping of program media, documentation and specifications shall be at the client’s cost and risk. Any training and explanations requested by the client beyond this will be invoiced separately. Insurance will be arranged only at the client’s request.

2.8.      We expressly point out that an accessible design (of websites) within the meaning of the Federal Act on the Equal Treatment of Persons with Disabilities (Federal Disability Equality Act – BGStG) is not included in the offer unless separately/individually requested by the client. If an accessible design has not been agreed, the client is responsible for reviewing the service for its legal admissibility with regard to the Federal Disability Equality Act. The client must also review any content provided by it for legal admissibility, in particular under competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilment of any duty to warn, the contractor shall not be liable to the customer for the legal admissibility of content if it was specified by the customer.

2.9.      The web pages, the content displayed and the features of the online service are subject to change. The contractor reserves the right to update and modify the web pages, the content displayed and the features of the online service as often as required. Temporary, technically caused interruptions of the online service or delays in establishing a connection cannot be completely ruled out. The contractor will remedy any interruption or other technical fault that comes to its attention without culpable delay.

            Technical maintenance work may result in interruptions to the usability of the online service. Maintenance work will be announced (where possible) and kept as short as possible.

3. Requirements for using online services

3.1.      The client undertakes to follow the contractor’s instructions regarding use of the web pages and/or the online service.

3.2.      The client is responsible for maintaining the confidentiality of the client’s registered usernames and passwords. The client is responsible for the accuracy of the client’s registration data and the registration data of the client’s users (hereinafter referred to as the “Client’s registration data”). In the event of a breach of the confidentiality of a username, the assigned password or security in general for which the client is responsible, the client must notify the contractor immediately.

3.3.      The client agrees not to use the web pages or the online service to:

– upload, send or otherwise transmit data or content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libellous or hateful, that violates another person’s privacy, is racially or ethnically discriminatory, or is otherwise offensive;

– harm minors in any way;

– impersonate any person or entity (including, but not limited to, employees of the contractor) or misrepresent your affiliation with a person or entity, or otherwise misrepresent yourself;

– upload, send or otherwise transmit content that you are not entitled to transmit under any law or under contractual or fiduciary relationships (such as insider information or legally protected and confidential information, where the rights are held by third parties);

– upload, send or otherwise transmit content that infringes a patent, trademark, trade secret, copyright, or other proprietary rights of any party;

– upload, send or otherwise transmit unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;

– upload, send or otherwise transmit material that contains software viruses or other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

– interfere with or disrupt the web pages, servers or networks connected to the web pages, or disregard any requirements, procedures, policies or regulations of networks connected to the web pages; harass others in any way; collect or store personal data of other users;

– promote or disseminate instructions and information about illegal activities; promote physical harm or injury to any group or individual; or promote an act of violence against animals. This may include, but is not limited to, disseminating instructions for building explosive devices, grenades and other weapons, as well as creating “crush” websites; and using the hosting site (or directory) as storage for remote loading, or as a portal page or reference to another website (other than your own website), whether within or outside the web pages.

3.4.      The client will monitor compliance with the above terms of use within the scope of the legal requirements. In the event of a breach of the terms of use, the contractor may take appropriate measures. Such measures may include—without limitation—warnings, temporary suspension or termination of the services, denial of access and/or removal of materials from the web pages. The contractor reserves the right and has full discretion to remove, censor or edit content that violates these provisions or is otherwise objectionable and, where applicable, with regard to item 3.3. the first, second and ninth bullet point, to notify law enforcement authorities.

3.5 The client is not permitted to pass on data retrieved via interfaces of the online platform to the same extent without restriction. Specifically, this means that the client may not sublicense the online platform without express permission.

           If the client or one of its employees breaches the terms of use, the contractor is entitled to terminate the contract with immediate effect.

4. Prices, taxes and fees

4.1.      All prices are in euros excluding VAT. They apply only to the present order. The stated prices are ex works/ex office of the contractor. The costs of program media (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees will be charged separately.

4.2.      The contractor is entitled to increase the flat-rate amounts or monthly costs of the online service stated on the reverse side accordingly in the event of increases in wage and material costs and/or other costs and charges after conclusion of the contract, and to charge the client as of the beginning of the month following the increase. Increases shall be deemed accepted by the client in advance if they do not exceed 10% per year. The monthly flat rate is value-indexed according to CPI 2015, base index (month of contract conclusion), and must be adjusted annually.

4.3.      For library (standard) software, the list prices valid on the day of delivery apply. For all other services (organisational consulting, programming, training, migration support, telephone consulting, etc.), the work effort will be charged at the rates valid on the day the service is provided. Deviations from the time expenditure underlying the contract price that are not attributable to the contractor will be charged according to actual effort.

4.4.      Travel costs, daily allowances and overnight expenses will be charged to the client separately according to the applicable rates. Travel time is considered working time.

4.5.      If a free month has been agreed separately for an online service, the free month may—unless otherwise agreed—be used only once and exclusively from the first use, regardless of the number of assets (= billing unit) and any subsequent additional bookings of further assets.

4.6 The DRIP 2 GO Free online service provides a free option to use the online platform with limited functionality. The functions are continuously expanded and adapted. They are listed in the online platform’s Marketplace. Each account created is initially assigned to the “Drip 2 Go Free” profile.

5.         Delivery date

5.1.      The contractor endeavours to meet the agreed performance dates (completion and/or provision of the online service) as accurately as possible.

5.2.      The target performance dates can only be met if the client provides all necessary work and documents in full by the dates specified by the contractor—especially the specification accepted by it pursuant to Section 2.3—and fulfils its cooperation obligations to the required extent.

Delivery delays and cost increases arising from incorrect, incomplete or subsequently amended information and details and/or documents provided are not attributable to the contractor and cannot place the contractor in default. The client shall bear any resulting additional costs.

5.3 For orders comprising several units and/or programs, the contractor is entitled to make partial deliveries and/or issue partial invoices.

5.4.      The contractor shall not be liable for any failure to perform obligations under these terms of use if such failure is due to circumstances beyond its control; this includes lockouts, strikes, spontaneous work stoppages, inability to obtain supplies, accidents, war, riots, civil unrest, fire, explosion, earthquake, epidemic, force majeure or any other cause or event.

6.         Payment for online services

6.1. The agreed flat-rate costs for ongoing online services must be paid by the client monthly in advance. Unless otherwise agreed, billing is carried out monthly based on the scope of the booked assets.

            If additional assets are booked during a monthly billing interval, a pro rata subsequent charge for the additional assets will be made in the following month, and further billing will be based on the highest number of assets in the previous month.

If billing based on shipments is agreed, billing will always be carried out in the following month based on the actual number of tracked shipments.

6.2.      Invoices issued by the contractor are due within 14 days of the invoice date, without deduction and free of charges.

6.3.      Compliance with the agreed payment dates is a material condition for carrying out delivery and/or contract performance by the contractor. Failure to make the agreed payments entitles the contractor to suspend ongoing work and withdraw from the contract. The client shall bear all associated costs as well as lost profit.

6.4 The client is not entitled to withhold payments due to incomplete overall delivery and/or provision, warranty or guarantee claims, or complaints.

7. Payment for software products and other services

7.1.      Invoices issued by the contractor, including VAT, are payable no later than 14 days after receipt of the invoice, without any deduction and free of charges. For partial invoices, the payment terms agreed for the overall order apply accordingly.

7.2.      For orders comprising several units (e.g. programs and/or training, implementations in partial steps), the contractor is entitled to invoice after delivery of each individual unit or service.

7.3.      Compliance with the agreed payment dates is a material condition for carrying out delivery and/or contract performance by the contractor. Failure to make the agreed payments entitles the contractor to suspend ongoing work and withdraw from the contract. The client shall bear all associated costs as well as lost profit.

7.4.      The client is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims, or complaints.

8. Copyright and use

8.1.      After payment of the agreed remuneration, the contractor grants the client a non-exclusive, non-transferable, non-sublicensable and unlimited right to use the software on the hardware specified in the contract and to the extent of the number of licences purchased for simultaneous use at multiple workstations, and to use all work results created by the contractor under the contract for the client’s own internal purposes. All other rights remain with the contractor. The same applies to use of the online service.

The client’s cooperation in the creation of the software does not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the contractor’s copyrights shall give rise to claims for damages, in which case full satisfaction must be provided.

8.2.      The client is permitted to make copies for archiving and data backup purposes on the condition that the software does not contain an explicit prohibition by the licensor or third parties, and that all copyright and proprietary notices are transferred to these copies unchanged.

8.3.      If disclosure of interfaces is required to establish interoperability of the software in question, the client must commission this from the contractor against reimbursement of costs. If the contractor does not comply with this request and decompilation is carried out pursuant to the Copyright Act, the results may be used exclusively to establish interoperability. Misuse will result in damages.

8.4.      If the client is provided with software whose licence holder is a third party (e.g. Microsoft standard software), the granting of the right of use shall be governed by the licence provisions of the licence holder (manufacturer).

9. Contract term for online services

The contractual relationship, which presupposes professional installation of the properly acquired contractual software program or access to online services, begins with signing of the contract and is concluded for an indefinite period.

This contract may be terminated at any time by either contracting party in writing, subject to a notice period of 3 months to the end of any calendar month.

If a free trial month is used and the online service is subsequently not used on a paid basis, access to the online service will be blocked after 30 days calculated from conclusion of the contract.

10.       Right of withdrawal for software products

10.1.    In the event of exceeding an agreed delivery time due solely to the contractor’s fault or unlawful conduct, the client is entitled to withdraw from the relevant order by registered letter if, even within a reasonable grace period, the agreed performance is not provided in essential parts and the client is not at fault.

10.2. Force majeure, labour disputes, natural disasters and transport blockades, as well as other circumstances beyond the contractor’s control, release the contractor from the delivery obligation or permit it to reschedule the agreed delivery time.

10.3.    Cancellations by the client are only possible with the contractor’s written consent. If the contractor agrees to a cancellation, it has the right to charge, in addition to the services provided and costs incurred, a cancellation fee amounting to 30% of the total project order value not yet invoiced.

11. Warranty, maintenance, changes

11.1.    The contractor warrants that the online service and/or the software fulfils the functions described in the associated documentation, provided that the software and/or online services are used on compatible operating systems, browsers and technical end devices.

11.2.    A prerequisite for resolving errors is that

– the client describes the error sufficiently in an error report so that it can be identified by the contractor;

– the client provides the contractor with all documents required to resolve the error;

– the client or a third party attributable to the client has not made any interventions in the software;

– the software is operated under the intended operating conditions in accordance with the documentation.

11.3.   In the case of warranty, rectification shall in any case take precedence over price reduction or rescission. In the event of a justified notice of defects, the defects will be remedied within a reasonable period, whereby the client enables the contractor to take all measures required for investigation and remedy of defects.

            The presumption of defectiveness pursuant to § 924 ABGB is excluded.

11.4.    Corrections and additions which prove necessary up to the handover of the agreed service due to organisational and programming-related defects for which the contractor is responsible will be carried out by the contractor free of charge.

11.5.    Costs for assistance, incorrect diagnosis, and troubleshooting and fault rectification for which the client is responsible, as well as other corrections, changes and additions, will be carried out by the contractor for a fee. This also applies to remedying defects if program changes, additions or other interventions have been carried out by the client itself or by third parties.

11.6.    Furthermore, the contractor assumes no warranty for errors, malfunctions or damage resulting from improper operation, modified operating system components, interfaces and parameters, the use of unsuitable organisational resources and data carriers where required, abnormal operating conditions (in particular deviations from installation and storage conditions), as well as transport damage.

11.7 Any warranty by the contractor is excluded for programs that are subsequently modified by the client’s own programmers or third parties.

11.8.    If the subject matter of the order is the modification or supplementation of existing programs, the warranty applies only to the modification or supplementation. The warranty for the original program is not reinstated as a result.

11.9.    Warranty claims expire six (6) months after handover.

11.10.  A temporary interruption of the usability of an online service due to technically caused outages or maintenance work does not constitute a defect in performance.

11.11.  The contractor assumes no warranty whatsoever for the accuracy of data material sourced from and provided by third-party providers (e.g. map material, traffic data, position data from telematics providers, etc.).

12.       Liability

12.1.    The contractor shall be liable to the client for damages demonstrably caused by it only in cases of gross negligence. This applies mutatis mutandis to damages attributable to third parties engaged by the contractor. In the event of culpable personal injury, the contractor’s liability is unlimited. In addition, any liability of the contractor is limited in amount per claim to the insured sum actually paid by the contractor’s liability insurance (the current maximum liability amount is EUR 1,000,000.00). If there is no insurance coverage, liability is limited to three times the fee paid in the matter. At the client’s request and expense, the maximum liability amount may be increased by separate written agreement.

12.2 Liability for indirect damages—such as lost profit, costs associated with business interruption, data loss or third-party claims—is expressly excluded.

12.3.    Claims for damages shall become time-barred in accordance with statutory provisions, but at the latest upon expiry of one year from knowledge of the damage and the party causing it.

12.4.    If the contractor performs the work with the assistance of third parties and warranty and/or liability claims against those third parties arise in this context, the contractor assigns these claims to the client. In this case, the client shall primarily pursue those third parties.

12.5.    The contractor assumes no liability whatsoever for the accuracy of data material sourced from and provided by third-party providers (e.g. map material, traffic data, position data from telematics providers, etc.).

12.6.    The contractor operates its online services with due care and reliability. Nevertheless, unavoidable interruptions may occur in the course of providing services due to unavoidable events not attributable to the contractor, as well as operationally necessary maintenance work. However, the contractor endeavours to remedy faults or interruptions as quickly as possible.

13. Loyalty

The contracting parties undertake to be mutually loyal. They shall refrain from any poaching and employment—also via third parties—of employees of the other contracting party who have worked on the implementation of orders, for the duration of the contract and for 12 months after termination of the contract. The contracting party in breach is obliged to pay liquidated damages in the amount of one annual salary of the employee.

14. Confidentiality

The contractor obliges its employees to comply with the provisions pursuant to § 6 of the Data Protection Act.

15. Miscellaneous

Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties will cooperate in partnership to find a provision that comes as close as possible to the invalid provisions.

16. Final provisions

            Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively under Austrian law, excluding the conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods (CISG), even if the order is carried out abroad. For any disputes, exclusive jurisdiction of the competent court at the contractor’s registered office (Linz) is agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions apply only to the extent that the Consumer Protection Act does not mandatorily provide otherwise.

Only the German version is authoritative.