GENERAL TERMS AND CONDITIONS OF BUSINESS
KUPP Software GmbH
1.1.1 Services by Kupp Software GmbH, FN 388044 d, Kraußstraße 16, 4020 Linz, (hereinafter also referred to as "Kupp GmbH") are provided exclusively on the basis of the following General Terms and Conditions (GTC) in the version valid at the time of the order. Any deviating provisions shall only become effective if they have been agreed upon in writing. The customer can view, download and print the respective valid version of the GTC on the Kupp GmbH website. These "General Terms and Conditions" apply without exception to all deliveries and services of our company.
1.1.2 Insofar as Kupp GmbH's General Terms and Conditions are also drawn up in English, only the German version shall nevertheless prevail.
1.1.3 Terms and conditions of purchase and general terms and conditions of a customer are excluded. If, on the basis of a corresponding agreement, the Customer's terms and conditions of purchase and/or general terms and conditions of business are also applicable, Kupp GmbH's GTC shall take precedence in the event of conflicting clauses.
1.1.4 Should individual provisions of these "General Terms and Conditions" be invalid due to mandatory statutory provisions, the "General Terms and Conditions" shall remain legally binding with the exception of the invalid provisions in all other respects. The contracting parties shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the legally invalid or unenforceable provision in terms of content and purpose.
1.2 Offers, conclusion of contract
1.2.1 The Contractor (Kupp GmbH) accepts offers or orders of the Customer by written or digital order confirmation.
1.2.2 The information contained in catalogs, price lists, brochures, company information material, leaflets, advertisements on trade fair stands, in Information on the services and products of the Contractor (Kupp GmbH) provided in circulars, advertising mailings or other media is non-binding unless it is expressly stated in writing to be part of the contract.
1.2.3 Cost estimates of Kupp GmbH are generally prepared without guarantee for completeness and correctness.
1.2.4 All offers are subject to change without notice.
2.1 Service provision:
2.1.1 The place of performance for all services rendered by Kupp GmbH shall be the registered office of Kupp GmbH, ... in 4020 Linz, Austria.
2.1.2 The creation or provision of individual software solutions, mobile applications and/or organizational concepts shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the Principal. This shall also include practical test data as well as test facilities to a sufficient extent, which the Principal shall provide in a timely manner, during normal working hours and at its own expense. If the client is already working on the system provided for testing in live operation, the responsibility for securing the live data lies with the client.
2.1.3 The basis for the preparation of programs is exclusively the written performance specification which Kupp GmbH prepares against cost calculation on the basis of the documents and information provided to it or those documents which the Customer provides in this respect. Unless expressly stated in the written service description is noted, neither existing software solutions, other documents nor existing work processes as a basis for the creation of the individual program. The written service description is to be checked by the client for correctness and completeness and marked with his approval. Change requests occurring later can lead to separate deadline and price agreements.
2.1.4 Individually created software or program adaptations require a program acceptance by the Customer for the respective program package at the latest 4 weeks after delivery. This shall be confirmed in a protocol by the Customer. If the customer allows this period to elapse without program acceptance, the software supplied shall be deemed to have been accepted. If the software is used in live operation, it shall in any case be deemed to have been accepted and fulfilled.
2.1.5 When ordering standard programs for purchase or for transfer of use, the Customer confirms knowledge of the scope of services of the ordered programs by placing the order.
2.1.6 Should it become apparent in the course of the work that the execution of the order in accordance with the specification of services is actually or legally impossible, Kupp GmbH shall be obliged to notify the client thereof immediately. If the customer fails to remedy the impossibility within a reasonable period of time despite having been notified accordingly, Kupp GmbH shall be entitled to refuse performance or further work. If the impossibility of performance is the result of a failure on the part of the customer or of a subsequent change in the specification of services by the customer, Kupp GmbH shall be entitled to withdraw from the order. The costs and expenses incurred up to that point as well as any dismantling costs shall be reimbursed by the customer.
2.2 Rights of use to software products
2.2.1 To the extent that Kupp GmbH provides the Customer with software products or enables the Customer to use software products within the scope of the service, the Customer shall have the right to use the software products. Non-exclusive, non-transferable, non-sublicensable right, limited to the term of the respective agreement, to use the software products in unmodified form.
2.2.2 For third-party software products provided to the Customer by Kupp GmbH, the respective license terms of the manufacturer of the respective software products shall apply with priority.
2.2.3 Unless a separate agreement is made, no further rights to software products shall be transferred to the Customer. The rights of the client according to §§ 40(d), 40(e) UrhG are not affected by this.
2.2.4 All documents provided to the client by Kupp GmbH, in particular the documentation on software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.
2.2.5 For any software and program developments, both the right of use and any copyrights remain with Kupp GmbH.
3.1.1 Kupp GmbH shall only be liable to the Customer for damage for which it can be proved that it is responsible in the event of gross negligence. This shall also apply to damage caused by third parties engaged by the Contractor.
3.1.2 Liability for indirect damages - such as loss of profit, costs associated with a business interruption, loss of data or claims by third parties - is expressly excluded.
3.1.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but at the latest upon expiry of one year from knowledge of the damage and the damaging party.
3.2.1 Provided that the Customer has provided the Supplies/Services in accordance with the applicable installation requirements and instructions of Kupp GmbH and used them under the respectively applicable conditions of use, Kupp GmbH warrants in accordance with the provisions of these GTC that the delivery items/services have the agreed functionality and are free from defects of title.
3.2.2 The warranty period is six months from delivery.
3.2.3 A defect in the sense of warranty law shall only be deemed to exist insofar as it is a question of functionally disruptive deviations from the valid specifications.
No warranty is given for minor and/or insignificant defects or reductions; this applies in particular to those defects by which the agreed or usually assumed usability is not impaired. Kupp GmbH also does not warrant that programs used by the customer, which have no contractually agreed direct connection with the agreed services of Kupp GmbH, will work together, run uninterruptedly or completely error-free.
Kupp GmbH shall also not be responsible for a defect if the defect is due to the task specified by the Customer or the Customer's insufficient or defective duty to cooperate. Furthermore, the warranty does not apply if the client makes or has made unauthorized changes to the delivered software.
3.2.4 The Client shall notify defects in writing with a precise description of the problem. The warranty in the event of a justified notice of defect shall include the diagnosis of the defect and the rectification of the defect. Any malfunctions shall be notified by the client immediately and in detail.
Kupp GmbH shall support the customer in the search for the defect and the cause of the defect. If the customer cannot prove that the defect is attributable to Kupp GmbH, Kupp GmbH shall be entitled to charge the customer for the services rendered by it in this respect.
The Customer shall enable Kupp GmbH to take all measures necessary to investigate and remedy the defect.
3.2.5 Defects shall be remedied primarily by improvement. The improvement shall be effected, at Kupp GmbH's option, by removal of the defect, by a corresponding modification of the software, by provision of a new program version, by delivery of a new software or by Kupp GmbH showing reasonable possibilities to avoid the effects of the defect. The customer shall support Kupp GmbH accordingly; in particular it is a prerequisite for any remedy of defects that Kupp GmbH receives all necessary documents and information from the customer.
3.2.6 The Customer may demand the rescission of the contract or the reduction of the remuneration only insofar and only if the multiple improvement of the defect finally fails despite a reasonable grace period of at least 30 days set in writing.
3.3 Liability and warranty exclusion
3.3.1 Any compensation for (attempted or successful) rectification of defects by the Customer itself or by third parties (substitute performance) shall be excluded.
3.3.2 Costs for assistance, misdiagnosis as well as error and fault correction for which the customer is responsible as well as other corrections, changes and additions shall be carried out by Kupp GmbH exclusively against payment. This shall also apply to the correction of errors if program changes, additions or other interventions have been made by the customer itself or by third parties without the consent of Kupp GmbH.
3.3.3 Furthermore, Kupp GmbH does not assume any warranty for errors, malfunctions or damage resulting from improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, if such are prescribed, abnormal operating conditions as well as transport damage.
4.1 Kupp GmbH undertakes to inform the client immediately about product/software relevant changes and to keep the client informed about the progress or development of the service to be provided.
4.2 The client has the right to request information at any time in connection with the contractually agreed service. In addition, the client is granted the opportunity to obtain information about the status of the service at customary times.
4.3 The Customer undertakes to make available, at the request of Kupp GmbH, a period of at least 2 hours within the next 10 working days between 06:00 and 22:00 CET (Central European Time) for any work to be carried out by Kupp GmbH. In the event of non-compliance on the part of the client, any claim for compliance with the project deadlines and cancellation fees shall lapse.
5.1 Kupp GmbH undertakes to comply with the data protection regulations applicable in Austria when handling personal data and to take the technical and organizational measures required for data protection in Kupp GmbH's area of responsibility.
5.2 Kupp GmbH is not obliged to check the permissibility of the data processing ordered by the client in terms of data protection regulations. The client shall ensure that the transfer of personal data to Kupp GmbH and the processing of such data by Kupp GmbH are admissible. The client shall indemnify and hold Kupp GmbH harmless from and against any violations of data protection laws for which the client is responsible.
5.3. the client shall take all reasonable measures to protect the client's data and information stored by Kupp GmbH against unauthorized access by third parties.
- Intellectual property
Kupp GmbH alone, as well as licensors of Kupp GmbH, own all rights and title, including all related intellectual property rights, in the software products made available for use and to
suggestions for improvement, ideas, requests for enhancements, feedback, recommendations or other information provided by the Customer in connection with the Software Products made available for use. Unless otherwise agreed, contractual relationships with Kupp GmbH do not constitute a sale and no ownership rights in or with respect to the software products provided for use by Kupp GmbH are transferred. Transfers or modifications of the Kupp GmbH software products provided for use may therefore not be transferred or modified by the client.
- Terms of payment
7.1 Unless otherwise agreed, invoices of Kupp GmbH are due for payment within 14 days after receipt of the invoice without deduction and free of charges.
7.2 The date of receipt of the invoice amount on our account stated on the invoice shall be expressly agreed as the debt-discharging date of payment. The risk for the duration of the transfer route and the transfer process until receipt on our account is borne by the client.
7.3 Compliance with the agreed payment dates is an essential condition for the performance of the service or fulfillment of the contract by Kupp GmbH: In case of default of payment by the Customer, 9% default interest p.a. shall be deemed agreed. In case of non-compliance with the agreed payment dates Kupp GmbH is entitled to stop ongoing work and to demand advance payments or securities for outstanding services.
7.4. In case of default Kupp GmbH shall also be entitled to withdraw from the contract, this shall apply in particular if no advance payments or securities are provided for outstanding services. All costs incurred by Kupp GmbH as a result of the delay or withdrawal from the contract, as well as any damage incurred by Kupp GmbH as a result, including loss of profit, shall be reimbursed by the client.
- Term of the contract
8.1 Contracts between Kupp GmbH and the Customer shall run for the period agreed upon in the contract.
8.2 Each contractual partner shall be entitled to terminate the contract prematurely and without notice for good cause in writing in any technically possible form. Good cause shall be deemed to exist in particular if the respective other contracting party violates material obligations under the contract despite written warning and threat of termination....
8.3 Furthermore, Kupp GmbH shall be entitled to terminate the contract prematurely for good cause if material parameters of the performance of the services have changed which are neither attributable to the sphere of the customer nor to Kupp GmbH, and if for this reason Kupp GmbH can no longer reasonably be expected to continue the services from an economic point of view, for example, but not exclusively, in the case of excessive exchange rate fluctuations.
8.4 Upon termination of the contract, the Customer shall immediately return to Kupp GmbH all documents and documentation provided to it by Kupp GmbH.
- Trademark rights and references
Kupp GmbH is entitled - only after individual contractual agreement - to use company name and logo of the Customer as customer reference for advertising purposes, this applies among others to company website, exhibition stands or newsletters.
10.1 The client irrevocably undertakes to maintain secrecy about all business and trade secrets made accessible to him by Kupp GmbH, provided to him or otherwise made known to him in connection with or on the basis of the business relationship or contact with Kupp GmbH. No information may be made available to third parties without the consent of Kupp GmbH.
10.2 The Customer further undertakes to use any information made available to it only within the scope of the respective contract or business relationship.
- Place of jurisdiction and applicable law/choice of law
11.1 All legal relationships and disputes between Kupp GmbH and a client are exclusively subject to Austrian law The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded by mutual agreement.
11.2 For the resolution of all disputes arising between Kupp GmbH and the client - including disputes concerning the existence or non-existence of a contract or these General Terms and Conditions - the exclusive jurisdiction of the court having jurisdiction over the subject matter at the registered office of Kupp GmbH in Linz, Austria, is agreed. However, Kupp GmbH shall be entitled, at its own discretion, to bring an action against the customer before any other court which may have jurisdiction under national or international law, in particular the court at the registered office of the customer. The provisions made in the preceding provisions shall also apply if disputes arise as to the validity of the agreement on the place of jurisdiction.
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