8.9 Should the customer be in default with performing a contractual obligation which constitutes a requirement for performance on the part of NIC Solutions GmbH, and should customer fail to cure such default within a reasonable grace period, NIC Solutions GmbH, notwithstanding its claims to compensation of damage, if any, and additional cost, will be put into a position with respect to this (preliminary) non-performance as if NIC Solutions GmbH had already properly performed, and NIC Solutions GmbH may immediately invoice and declare such performance due and payable. As soon as the impediment has been removed, NIC Solutions GmbH will make up for its contractual services, whereby additional expenses shall be compensated separately.
8.10 If the customer fails to properly comply with his payment obligations within a reasonable grace period, NIC Solutions GmbH may discontinue the contractual performance, take back delivered items and, if necessary, enter customer’s premises for this purpose in order to remove the items. Any discontinuation of performance and/or taking back of products shall not be deemed a cancellation of the contract without NIC Solutions GmbH’s express written notice. NIC Solutions GmbH will resume its performance as soon as the reasons for the discontinuation and/or taking back of items have ceased to exist. The discontinuation of services does not release the customer from his obligation to pay the contractually agreed compensations.
9 Retention of Title, Reservation of Right of Use
9.1 The goods delivered by NIC Solutions GmbH will remain its property until full payment of the purchase price along with interest and ancillary expenses is effected. The rights to use the delivered software will be granted only subject to full payment as well. Until full payment was made, the customer may resell, handle, process or combine the goods or the software only with NIC Solutions GmbH’s written consent, except where the goods are intended for these purposes with NIC Solutions GmbH’s knowledge within the scope of the customer’s ordinary course of business. As regards software, the customer’s right to reuse the software shall expire when NIC Solutions GmbH asserts its retention of title or reserves the right to grant a license. All program copies made by the customer shall be deleted without further delay. NIC Solutions GmbH may take back goods subject to a retention of title or reserved licenses if the customer is in default. However, this will not trigger a rescission from the contract. However, under the conditions set forth in Clause 8.10, NIC Solutions GmbH may, at its election, rescind the contract or sell the goods subject to a retention of title or the reserved licenses to cover the customer’s payment obligations.
9.2 The customer assigns already now to NIC Solutions GmbH all claims and rights he may have by virtue of any resale, processing, combination or other realization of the goods, even if it be unlawful, and all claims for damage to or use of the goods. However, the customer may collect these claims also after assignment, but he shall note the assignment in his records, notify his debtor thereof and provide to NIC Solutions GmbH upon its request all information about the sale of the goods it delivered and indicate his debtors to NIC Solutions GmbH. The customer shall immediately pay to NIC Solutions GmbH any amounts collected, and he shall preserve them carefully separated and free of charge on NIC Solutions GmbH’s behalf until then. NIC Solutions GmbH may revoke the sale/direct debit authorization if the customer fails to properly satisfy his payment obligations, and demand surrender of the goods.
9.3 Until full payment of all claims, the goods and/or any rights of use that may have been granted may not be pledged or otherwise encumbered with rights of third parties either. The customer shall immediately inform NIC Solutions GmbH of any pledge, other encumbrance or deterioration of the goods or the assigned claims, and the customer shall sufficiently insure all goods against customary risks (in particular theft, damage caused by broken glass, fire and water) at his own cost and expense and prove the relevant insurance to NIC Solutions GmbH upon request. The customer shall be liable for any accidental loss of the goods also upon termination of the contract.
9.4 If NIC Solutions GmbH exchanges spare parts in the course of rectifying defects/carrying out repair work, the parts exchanged at the customer’s electronic data processing system shall transfer to NIC Solutions GmbH ’s property. The customer shall be liable to NIC Solutions GmbH that rights of third parties do not prevent this exchange along with a transfer of title.
10.1 As soon as NIC Solutions GmbH states that the contractually agreed entire or partial delivery/service is completed and has made the same ready for acceptance, the customer will immediately accept the delivery/service to verify whether it is consistent with the agreed specification of services. If no defects are identified upon acceptance which eliminate or substantially reduce the value or fitness of the delivery or service for the ordinary or contractually assured use, the customer shall confirm his acceptance in an acceptance certificate. Insignificant defects, if any, shall be stated in a separate list of defects and rectified by NIC Solutions GmbH on short notice. Should a delivery or service not be accepted by the customer within fourteen (14) days from receipt of the notice of completion for reasons the customer is responsible for, the faultlessness of NIC Solutions GmbH’s delivery/service to be accepted shall be deemed irrevocably confirmed.
10.2 If material defects are identified upon acceptance, NIC Solutions GmbH shall remove these free of charge within a reasonable period. The customer shall then accept the relevant service, unless he had to accept the service before in view of the nature of defects. Defects which are due to information, data, etc. provided by the customer or incorrect or insufficient information or materials provided by the customer, shall not entitle the customer to refuse acceptance.
11.1 The warranty period is six months. This applies also to items which are firmly connected with a building or a property.
11.2 NIC Solutions GmbH shall be given immediate written notice of all defects, stating the possible causes. After the customer has accepted the delivery/service (see Clause 10), notice of defects which were identifiable upon acceptance shall be excluded.
11.3 If a notice of defects is legitimate and timely given, NIC Solutions GmbH will at its election rectify defects or take back the incriminated item and deliver a defect-free product DDP within a reasonable period during its business hours (Monday – Friday 9 a.m. to 5 p.m.). The customer shall enable NIC Solutions GmbH to take all measures which are necessary to examine and/or rectify the defects. For warranty work at the customer’s business premises, the customer shall free of charge provide any employees who may be necessary. The customer shall immediately reimburse all costs NIC Solutions GmbH incurred in connection with an unjustified notice of defects.
11.4 NIC Solutions GmbH may release itself from the customer’s warranty claims by assigning to the customer its warranty or damage claims against upstream suppliers or producers. NIC Solutions GmbH shall not be liable for the correctness or recoverability of such claims.
11.5 Defects which are due to instructions or assemblies not ordered by NIC Solutions GmbH, insufficient equipment or use of inappropriate organization materials and data carriers, non-compliance with the installation requirements, improper use, force majeure, software release changes, if any, or new hardware installations, conditions affecting the mode of operation (e.g. insufficient power supply or air-conditioning) or damage caused by transport shall be excluded.
12 Delayed Acceptance, Acceptance of Returned Goods
12.1 In case the customer accepts deliveries of goods with delay, NIC Solutions GmbH may store the goods for the customer at his own cost and expense, and it may sell the goods on the free market not below half of the estimated value against setoff of the purchase price and the costs for storage and selling no earlier than 14 days after the customer has been notified of the storage.
12.2 Except in case of a rescission under warranty law, goods may be sent back only with NIC Solutions GmbH’s prior consent. The invoice number and invoice date shall be indicated. Agreed return shipments will be made at the customer’s cost and expense and risk.
12.3 NIC Solutions GmbH will not accept non-agreed return shipments and return them at the sender’s cost and expense and risk. However, NIC Solutions GmbH may store returned goods at the customer’s cost and expense and risk.
12.4 Each storage of goods by NIC Solutions GmbH for the customer shall, on a subsidiary basis, be governed by the General Austrian Forwarding Terms and Conditions (AÖSp) and the tariffs of Austrian forwarding agents valid from time to time.
13 Intellectual Property Rights, Protection
13.1 Unless expressly provided otherwise, the customer may use the software delivered by NIC Solutions GmbH in accordance with its intended purpose on the systems which may be specified in detail by contract in the state in which the customer has his registered offices (or in the state in which individuals have their residence). The customer is thus granted a non-exclusive and non-transferable ordinary right to use the software (ordinary permit to use the work).
13.2 Notwithstanding Sections 40d and 40e Copyright Act (UrhG), the customer shall not reproduce parts of the software in printed or any other non-machine-readable form (e.g. micro fiche) or carry out any disassembly, decompilation or other measures to obtain the source code.
13.4 The customer will take reasonable precautions and instruct all persons who have access to NIC Solutions GmbH’s deliveries or services to ensure that these are kept confidential. Should, during the execution of the order, arise any results, exploitable ideas or the like from NIC Solutions GmbH’s cooperation with the customer, which are the subject-matter of a patent or a utility model, a copyrightable work, design or other work capable of being protected by intellectual property rights, NIC Solutions GmbH may irrevocably use and exploit these results or ideas or the related know-how without any restriction in terms of time, territory and substance and independent of any consent.
13.5 NIC Solutions GmbH will reserve all rights to all copies, excerpts, improvements and any other processing of software or of parts thereof. No copies may be distributed to third parties without NIC Solutions GmbH’s consent. Third parties shall also mean other customers of NIC Solutions GmbH, but not the customer’s or NIC Solutions GmbH’s employees as well as persons who use the services in accordance with the contract. The customer will keep records on the number and storage of copies (also of copies pursuant to Sections 40d and 40e UrhG). NIC Solutions GmbH may have copies of these records made at its own cost and expense. Before passing on any data carriers, the customer will ensure that no parts of the software exist on the data carrier.
13.6 For each case of passing on the software or individual components thereof without authorization, the customer shall pay to NIC Solutions GmbH a no-fault penalty equal to a triple one-time fee or ten times the annual license for the relevant component, which penalty cannot be reduced by court order.
14.1 Upon request and against separate compensation, NIC Solutions GmbH will train the customer’s staff in operating data processing systems and/or software programs. The customer shall be solely responsible for selecting appropriate employees for data processing training.
14.2 In connection with training services, NIC Solutions GmbH will not warrant for a certain result or assume any liability if data processing problems are caused by insufficient training of the operating staff.
15.1 NIC Solutions GmbH shall be liable for damage caused by itself or by any of its subcontractors and servants only in case of intent or gross negligence. Any liability for indirect and consequential damage, lost profits, loss of savings, loss of interest, pecuniary damage, uninterrupted access to offered services, establishment of desired connections at any time, loss arising from claims of third parties as well as loss of and damage to (recorded) data, other data material and destruction of software shall be excluded. NIC Solutions GmbH shall not be liable for any claims which may arise from breakdowns, if any (e.g. mutilations, omissions or delays) and disclaims any liability for the completeness and correctness of transmitted data.
15.2 The amount of the customer’s entire damage claims in case delivered goods are defective shall not exceed the amounts which will be reimbursed to NIC Solutions GmbH by third parties. NIC Solutions GmbH’s obligation to pay a compensation to the customer shall, in any event, not exceed EUR 20,000.00 for any event causing damage, and EUR 100,000.00 towards all injured parties, if any, and in aggregate per calendar year. If the total damage exceeds the maximum amount, the individual injured parties‘ or the customer’s compensation claims will be reduced on a pro-rata basis. NIC Solutions GmbH shall not have to prove the non-existence of the requirements for its liability for gross negligence. If a person is injured or killed, NIC Solutions GmbH shall be unrestrictedly liable also in case of slight negligence.
15.3 NIC Solutions GmbH shall, if necessary, be liable for no-fault compensation claims according to the provisions of the Product Liability Act (PHG, Federal Law Gazette 1988/99, as amended). Any claims against NIC Solutions GmbH under no-fault liability outside the scope of application of the Product Liability Act shall be excluded.
15.4 NIC Solutions GmbH disclaims any liability for any damage arising from an official permit, approval, license/authorization or from the consent of third parties which may be necessary but was not granted.
15.5 Any damages and recourse claims, if any, against NIC Solutions GmbH shall forfeit, unless they are asserted in court within six months.
15.6 Several customers shall be jointly and severally liable towards NIC Solutions GmbH.
16 Termination of Contracts
16.1 The term of a contract depends on the contract concluded with the customer. Fixed-term contracts may not be terminated before expiry of the agreed term. If NIC Solutions GmbH continues to offer and if the customer continues to accept the agreed service after expiry of the term, the contract will be renewed for one further year at a time.
16.2 Unless otherwise agreed, contracts concluded for an indefinite period of time may be terminated with three months‘ notice on the last day of a calendar year, with the date of the postmark being relevant. NIC Solutions GmbH may give notice of termination to the customer also with respect to individual deliveries or services. In case a continuing obligation was entered into with NIC Solutions GmbH, the customer waives to give ordinary notice of termination until expiry of the second calendar year following the conclusion of this contract.
16.3 Notwithstanding their right to give ordinary notice of termination, the parties may terminate the contract without notice in case of good cause which makes it unreasonable for a party to continue the contractual relationship. Good cause shall be in particular
- a party’s default with a contractually owed performance despite a written reminder and granting of a reasonable grace period,
- the impossibility or inefficiency of a service, e.g. if services of NIC Solutions GmbH cannot be provided for lack of spare parts or in case of a supplier’s delay of delivery, discontinuation of operation, technical obsolescence of a defective electronic data processing system or of a device, etc., or
- if a party becomes incapable of acting or if its capacity to act is substantially limited, in particular due to the initiation of bankruptcy or compositions proceedings, the dismissal of an application for the initiation of bankruptcy or composition proceedings for lack of assets.
If NIC Solutions GmbH terminates a contract without notice within the scope of a fixed-term continuing obligation, the contractually agreed compensation shall be paid for the period until expiry of the regular term or up until the next possible termination date. If a contract is immediately terminated for good cause, all of NIC Solutions GmbH’s outstanding claims towards the customer shall be due and payable within ten days.
17 Loyalty, Competition Clause
17.1 The parties undertake to be loyal to each other. They will not, either themselves or through third parties, solicit and employ employees of the other party during the term of the contract and up to twelve (12) months after termination of this contract.
17.2 If a party violates these obligations, it shall pay to the other party a penalty equal to the gross annual salary most recently paid to the solicited employee, which penalty cannot be reduced by court order.
17.3 The customer will not use the know-how obtained within the scope of his contractual relationship with NIC Solutions GmbH to directly compete with the latter and, in case he violates this provision, the consumer undertakes to pay to NIC Solutions GmbH a penalty equal to five times the total contract value and, in case of services, equal to five times the last annual service fee, which penalty cannot be reduced by court order.
18.1 The customer agrees to be named as a reference by NIC Solutions GmbH in the latter’s advertising and other materials which are intended for the public.
19.1 Unless expressly agreed otherwise, place of performance for NIC Solutions GmbH’s deliveries and services as well as for all payments to NIC Solutions GmbH shall be Vienna.
19.2 All of the customer’s contractually agreed rights and obligations shall transfer to his legal successors, if any. The customer undertakes to expressly assign these rights and obligations and to assign this provision to legal successors. NIC Solutions GmbH may transfer all rights and obligations from this contractual relationship to other group companies. NIC Solutions GmbH will given written notice to the customer of any transfer of the contract. The customer shall have no right of termination in this event, provided the acquiring company accedes to all rights and obligations of the contract. NIC Solutions GmbH may entrust subcontractors with the performance of its contractual obligations.
19.3 The customer shall immediately, but no later than within one month after a change, give written notice to NIC Solutions GmbH of any change of his name or company name, his address (relocation of registered offices), his legal form, his companies register number, his paying agent, his bank and credit card company, direct debiting orders, if any, as well as his VAT number.
19.4 The date of the postmark shall be relevant for compliance with time-limits. If the customer fails to give notice or to give timely notice of changes as set forth in Clause 19.4 and if he therefore does not receive legally relevant documents NIC Solutions GmbH sent to the address most recently indicated by him, in particular notices of termination or reminders, the documents shall nevertheless be deemed received. Invoices and reminders of NIC Solutions GmbH shall be deemed received under the same conditions if they were sent to the paying agent most recently indicated by the customer.
19.5 The customer shall not assign any claims and rights from the contractual relationship without NIC Solutions GmbH’s consent.
19.6 Any taxes and duties which may arise in connection with the execution of the contract shall be borne by the customer, who shall hold harmless and indemnify NIC Solutions GmbH in this respect.
19.7 The customer acknowledges that the re-export of data processing components may be subject to statutory or governmental restrictions. The customer shall ensure compliance therewith on his own responsibility and hold harmless and indemnify NIC Solutions GmbH in this respect.
19.8 The contractual relationship of the parties shall be exclusively governed by and construed in accordance with Austrian law. The United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention, Federal Law Gazette 1988/96) and all provisions of Austrian law referring thereto shall be expressly excluded.
19.9 Should any term hereof be or become invalid, this shall not affect the validity of the remaining terms; invalid terms shall be replaced by valid terms which closest reflect the intended purpose.
19.10 Place of jurisdiction for all disputes arising from the contractual relationship or from future contracts with the customer shall be the court having subject-matter jurisdiction for Vienna – Inner City. However, NIC Solutions GmbH may also sue the customer at his general place of jurisdiction.