General Terms and Conditions
1.1 Zettasecure GmbH (hereinafter referred to as "Contractor") provides its services (delivery of programs, creation of software, IT consulting) exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between the Contractor and the Client, even if they are not expressly referred to. The GTC are exclusively applicable to legal relationships with entrepreneurs, i.e., B2B.
1.2 In addition, when reselling software, those GTCs of the respective software manufacturer (hereinafter referred to as third party) shall also apply. These are available for
1.3 The version valid at the time of the conclusion of the contract, which is published on the homepage of the Contractor or the homepage of the third party, is authoritative in each case.
1.4 Any terms and conditions of the Client only apply if they are accepted by the Contractor in writing.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this will not affect the liability of the remaining provisions and the contracts concluded based thereof. The invalid provision must be replaced by a valid provision that comes as close as possible to the meaning and purpose.
2.1 Offers made by the contractor are always subject to change and non-binding and only come into effect through acceptance (confirmation or delivery) by the contractor.
2.2 If the delivery of standard software is the subject matter of the contract, the contractor will deliver the software to the purchaser in accordance with the product description. Unless explicitly agreed something else in writing, the contractor delivers the software or access to it in the current version. The source code of the software is no subject matter of the contract and will not be made available to the purchaser.
2.3 The contractor's product description conclusively regulates the nature of the functionality of the software. The contractor specifies there in particular which system requirements are necessary for the intended use of the software and which system landscapes, browsers and operating systems are supported by the software.
2.4 The basis for the creation of individual programs and individual consultations is the written service description, which the contractor prepares against cost calculation based on the documents and information provided to him or which the Client provides. This service description is to be checked by the client for correctness and completeness and to be marked with his approval. Requests for changes occurring at a later date may lead to separate agreements on dates and prices.
2.5 The development of individual programs and individual consultations is carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practical test data as well as test facilities to a sufficient extent, which shall be provided by the Customer 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.
2.6 The performance of the contractual services by the contractor will be carried out, unless otherwise agreed, at the contractor's discretion at the location of the computer system or at the contractor's business premises within the contractor's normal working hours. If, by way of exception, at the request of the customer, services are provided outside normal working hours, the additional costs will be invoiced separately. The contractor is responsible for selecting the employee to perform the contractual services and is entitled to call in third parties for this purpose.
2.7 If the services are provided on site at the customer's premises, the customer has to provide the network components, connections, supply current incl. peak voltage equalization, emergency power supplies, floor space for equipment, workstations as well as infrastructure to the required extent and quality (e.g. air conditioning) required for the provision of the services by the contractor free of charge. In any case, the customer is responsible for compliance with the prerequisites for the operation of the hardware required by the respective manufacturer. The customer is also responsible for room and building security, including protection against water, fire and access by unauthorized persons. The customer is responsible for special security precautions (e.g. security cells) on its premises. The client is not entitled to issue instructions - of any kind whatsoever - to the contractor's employees and shall address all requests regarding the provision of services exclusively to the contact person designated by the contractor.
2.8 Services not covered by this agreement, in any event, are:
3.1 The customer provides all information, data and documents required by the contractor for the performance of the order in the form requested by the contractor on the agreed dates and at its own expense and supports the contractor upon request in problem analysis and troubleshooting, coordination of processing orders and coordination of services. Changes in the work processes at the customer which may cause changes in the services to be provided by the contractor to the customer require prior coordination with the contractor.
3.2 The Customer performs all duties to cooperate incumbent upon it in such a timely manner that the contractor is not hindered in the performance of the services. The customer ensures that the contractor and/or the third parties engaged by the contractor get the necessary access to the premises at the customer for the performance of the services. The customer is responsible for ensuring that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract cooperate accordingly in the performance of the contract.
3.3 If the client does not fulfill its obligations to cooperate on the agreed dates or to the extent provided for, the services provided by the contractor nevertheless are deemed to have been provided in accordance with the contract despite possible restrictions. Schedules for the services to be provided by the contractor are postponed to a reasonable extent. The customer will separately remunerate the contractor for any additional expenses and/or costs incurred by the contractor as a result thereof at the rates applicable at the time at the contractor.
3.4 The customer ensures that its employees and third parties attributable to it treat the equipment and technologies used by the Contractor as well as any assets provided to it with care; the customer is liable to the contractor for any damage.
3.5 Unless otherwise agreed, the customer provides materials and services free of charge.
4.1 The Contractor is entitled, at its own discretion, to perform the services itself, to make use of competent third parties as vicarious agents for the performance of services under the contract and/or to substitute such services ("Third Party Services").
4.2 The commissioning of third parties within the scope of an external service takes place either in the contractor's own name or in the name of the client, the latter after prior information to the client. The contractor carefully selects this third party and ensures that it has the required professional qualifications.
4.3 The client enters obligations towards third parties that have been named to the client and that extend beyond the term of the contract. This expressly also applies in the event of termination of the contract for good cause.
4.4 If the contractor arranges services of third parties at the request of the Client, these contracts will be concluded exclusively between the client and the third party under the respective terms and conditions of the third party. The contractor is only responsible for the services provided by itself.
5.1 For the use of third-party software, the entire GTCs of the respective software apply. The contractor will make these GTCs available to the customer at any time upon request. In addition, they will be linked on the contractor's homepage.
5.2 All software may not be used for criminal, unlawful and illegal acts. The contractor undertakes to use the software only for its intended use.
5.3 The client is not allowed to share its password or data to access the account with any other party, whether for a fee or free of charge, and with or without a time limit.
6.1 Unless expressly agreed as binding, specified delivery or performance deadlines shall only be considered approximate and non-binding. Binding agreements on deadlines must be recorded in writing or confirmed by the contractor in writing.
6.2 If the contractor's delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance obligations will be suspended for the duration and to the extent of the impediment and the deadlines will be extended accordingly. If such delays last more than two months, the client and the contractor are entitled to withdraw from the contract.
6.3 If the contractor is in delay, the customer may only withdraw from the contract after having granted the contractor a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly. Claims for damages of the customer due to non-performance or delay are excluded, except in case of evidence of intent or gross negligence.
7.1 All prices and fees are quoted in euros and do not include value-added tax.
7.2 Unless otherwise agreed, the contractor is entitled to payment for each individual service as soon as it has been rendered. The contractor is entitled to demand advance payments to cover its expenses. In the case of the delivery of standard software, the claim to payment exists prior to delivery.
7.3 Cost estimates of the contractor are non-binding and are only valid for four weeks from the date of the offer. If it is foreseeable that the actual costs estimated in writing by the contractor will exceed the cost estimate by more than 15%, the contractor will inform the customer of the higher costs. The cost overrun is deemed to have been approved by the client if the client does not object in writing within three working days after the notification and at the same time discloses less expensive alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun will be deemed approved by the client from the outset.
7.4 If the client unilaterally changes or terminates work commissioned without the involvement of the contractor - notwithstanding the ongoing other support provided by the latter - the client has to compensate the contractor for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of the contractor, the client must furthermore reimburse the contractor for the entire fee agreed for this order (commission), whereby the crediting remuneration of § 1168 AGBG is excluded. Furthermore, the contractor is indemnified and held harmless regarding any claims by third parties, in particular by contractors against the contractor. Upon payment of the remuneration, the client does not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed have to be be returned to the contractor immediately.
The customer is only entitled to set off its own claims against claims of the contractor if its counterclaim is legally related to its liability, has been acknowledged by the contractor or has been established by a court of law.
9.1 The fee/invoice is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed in writing in individual cases. This also applies to the charging on of all cash expenses and other expenses. The goods delivered by the contractor remains the property of the contractor until full payment of the fee including all ancillary liabilities.
9.2 Objections to invoices must be raised by the client in writing with the contractor within two weeks of the invoice being issued. Upon expiry of the deadline, the customer acknowledges the correctness of the invoice in terms of reason and amount. In case of an objection raised within the deadline, the contractor will review it and, based on the result, confirm the correctness of the issued invoice or amend or recalculate the invoice accordingly.
9.3 In case of default in payment on the part of the client, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the contractor for the dunning and collection expenses incurred, insofar as they are necessary for the appropriate legal prosecution. This includes in any case the costs of two reminders in the customary amount of currently at least € 40.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.4 In the event of default of payment by the client, the contractor may immediately call due all services and partial services rendered under other contracts concluded with the client.
9.5 Furthermore, the contractor is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the remuneration remains unaffected.
9.6 If payment in installments has been agreed, the contractor reserves the right to demand immediate payment of the entire outstanding debt if partial amounts or ancillary claims are not paid on time (loss of time).
9.7 The client is not entitled to set off its own claims against claims of the contractor, unless the client's claim has been acknowledged by the contractor in writing or has been determined by a court.
10.1 The contractor undertakes to provide the services in accordance with the contract. If the contractor does not provide the services at the scheduled times or provides them only defectively, i.e. with significant deviations from the agreed quality standards, the contractor is obliged to start remedying the defects immediately and to provide its services properly and free of defects within a reasonable period of time by repeating the affected services or performing any necessary remedial work, at its option.
10.2 If the defectiveness is based on provisions or cooperation of the customer or on a violation of the customer's obligations pursuant to item 3, any obligation to remedy defects free of charge is excluded. In such cases, the services provided by the contractor are nevertheless deemed to have been provided in accordance with the contract, despite possible restrictions. The contractor will, at the request of the customer, undertake to remedy the defect at the customer's expense.
10.3 The customer will support the contractor in the elimination of defects and provide all necessary information. Defects which have occurred have to be reported to the contractor by the customer immediately in writing or by e-mail. The customer will bear any additional expenses incurred in the elimination of defects due to a delayed notification.
10.4 However, notices of defects are in any case valid only if they are documented in writing within 4 weeks after delivery of the agreed service. A defect to be dealt with is deemed to exist if the software program that is the subject of the contract in each case exhibits behavior that deviates from the corresponding service description/documentation in the latest valid version and this behavior can be reproduced by the customer. To precise investigation of any errors that may occur, the customer is obliged to make available the computer system used by it (in the case of systems in an online network with other computers also the corresponding connection), software programs, protocols, diagnostic documents and data to the contractor free of charge to a reasonable extent for test purposes during normal working hours and to support the contractor. Detected errors for which the contractor is responsible shall be resolved by the contractor within a reasonable period of time. The contractor shall be released from this obligation if defects within the customer's sphere of responsibility prevent this and are not remedied by the customer.
10.5 A solution to the error is provided by a software update or appropriate workarounds.
10.6 However, the client is not liable in particular for any necessary additional services, defects, delay, non-performance, errors, malfunctions or damages in connection with:
10.7 The provisions of this item apply mutatis mutandis to any deliveries of hardware or software products from the contractor to the customer. The warranty period for such deliveries is six months from handover. For any hardware or software products of third parties provided to the customer by the contractor, the respective warranty conditions of the manufacturer of these products have priority over the provisions of this clause.
11.1 All software programmed by Zettasecure GmbH is generally available 24/7. In this respect, the contractor guarantees a minimum availability of 99.5%. If maintenance work is required and the software is therefore not available, the Customer will be informed in a timely manner.
11.2 If third party software/cloud solutions are obtained via the Contractor, the availability of the respective services or products, shall be based on the period specified in the service description or in the SLA of the third party. The Contractor shall only provide the Customer with the option to use cloud services and products of third parties.
11.3 The Contractor shall not be responsible for internet- or network-related downtimes as well as for downtimes that are beyond the Contractor's control. This includes in particular actions of third parties not acting on behalf of the Contractor, technical conditions of the Internet that cannot be influenced by the Contractor as well as force majeure. The (additional) hardware and software and technical infrastructure used by the Customer may also have an influence on the services. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the Provider, this shall have no effect on the contractual conformity of the services provided.
11.4 The failure of the software shall be reported to the Contractor by the Customer immediately. The Contractor shall then immediately set activities for the elimination of the malfunction. The time of failure shall begin with the notification of the failure and end with the elimination of the failure.
11.5 The assertion of a claim for damages for downtimes exceeding the minimum availability, unless in case of intent or gross negligence, is excluded.
12.1 The contractor is entitled to terminate the contract with immediate effect for good cause. An important reason exists in particular if:
12.2 The customer is entitled to terminate the contract for good cause without granting a grace period. Good cause is deemed to exist in particular if the contractor continues to violate material provisions of this agreement despite a written warning with a reasonable grace period of at least 14 days to remedy the violation of the agreement.
13.1 The presumption of defectiveness according to § 924 ABGB is deemed excluded.
13.2 The statutory warranty provisions apply with the following exceptions:
13.3 In the absence of any agreement to the contrary (e.g. formal acceptance), the time of handover is the time of completion, at the latest when the client has taken control of the performance or has refused to take over the performance without giving reasons. If a joint handover is planned and the client fails to attend the handover date notified to him, the handover is deemed to have taken place on this date.
13.4 Claims for damages are limited to the net order value.
13.5 Insofar and as long as obligations cannot be fulfilled on time or properly as a result of force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of the power supply, failure of means of transport, failure of telecommunication networks or data lines, changes in the law affecting the services after conclusion of the contract or other non-availability of products, this does not constitute a breach of contract.
14.1 The contractor is only liable to the customer for damage for which it is demonstrably responsible in the event of gross negligence. This also apples mutatis mutandis to damage caused by third parties engaged by the contractor. In particular, the contractor is not liable for defects of the software provided by him. In the event of personal injury for which the contractor is responsible, the contractor will be liable without limitation.
14.2 In cases of slight negligence, liability of the contractor as well as its employees or other vicarious agents ("people") for property damage or financial loss of the customer is excluded, irrespective of whether it concerns direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. As far as the liability of the contractor is excluded or limited, this also applies to the personal liability of his "people".
14.3 Liability for indirect damages - such as loss of profit, costs associated with business interruption, loss of data or claims by third parties - is expressly excluded.
14.4 Any liability of the contractor for claims made against the client on the basis of the service provided by the contractor (e.g. advertising measure) is expressly excluded if the contractor has complied with its duty to inform or if such a duty was not recognizable to it, whereby slight negligence is not detrimental. In particular, the contractor is not liable for litigation costs, the client's own attorney's fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the client has to indemnify and hold the contractor harmless in this respect. If the contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the customer. In this case, the client has priority over these third parties.
15.1 All services of the contractor, in particular all programming work, source codes, etc., remain the property of the contractor or its licensors. By paying the fee, the client acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the Customer may only use the contractor's services for the agreed, own purpose and scope of use and exclusively in Austria. The acquisition of rights of use and exploitation of the contractor's services in any case requires the full payment of the fees invoiced by the contractor for such services. By the present contract only an authorization to use the work is acquired. A distribution by the client is excluded according to the copyright law. By the cooperation of the client in the production of the software, no rights are acquired beyond the use stipulated in the present contract. Any infringement of the contractor's copyrights result in claims for damages, in which case full satisfaction has to be paid.
15.2 Modifications or adaptations of the contractor's services, in particular their further development by the client or by third parties working for the client, are only permitted with the express consent of the contractor and - insofar as the services are protected by copyright - of the author. The release of all so-called "open files" is thus expressly not part of the contract. The contractor is not obliged to surrender them. I.e. without contractual assignment of the rights of use also for "electronic works" the client has no legal claim to them.
15.3 If the client is provided with software whose license holder is a third party (e.g. VPN software from NordVPN), the granting of the right of use is governed by the license terms of the license holder (manufacturer).
15.4 The client is liable to the contractor for any unlawful use in the double amount of the fee appropriate for such use.
15.5 Insofar as software products are provided to the customer by the contractor or the customer is enabled to use software products within the scope of the services, the customer is entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.
15.6 When using software products in a network, a license is required for each concurrent user. When using software products on "stand-alone PCs", one license is required for each PC.
15.7 For third-party software products provided to the customer by the contractor, the respective license terms of the manufacturer of such software products take precedence over the provisions of this item.
15.8 Unless a separate agreement is made, no further rights to software products are transferred to the customer.
15.9 The rights of the client according to §§ 40(d), 40(e) UrhG are not affected by this.
15.10 All documents provided to the customer by the contractor, in particular the documentation for software products, may neither be duplicated nor distributed in any way, whether for a fee or free of charge.
16.1 When handling personal data, the contractor has to comply with the provisions of the Data Protection Act, the GDPR and the Telecommunications Act and shall take the technical and organizational measures required for data protection in the contractor's area of responsibility.
16.2 The contractor undertakes in particular to have its employees comply with the provisions of Section 6 of the Data Protection Act.
16.3 Each contracting party assures the other party to treat all trade secrets brought to its attention by the other party in connection with this contract and its execution as such and not to make them available to third parties, unless they are generally known, or were already known to the recipient beforehand without any obligation to maintain secrecy, or are communicated or provided to the recipient by a third party without any obligation to maintain secrecy, or have demonstrably been independently developed by the recipient, or are to be disclosed on the basis of a legally binding official or judicial decision.
The contract and all mutual rights and obligations derived therefrom as well as claims between the contractor and the client have to be governed by Austrian substantive law, excluding its conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods. This also applies if the order is executed abroad.
18.1 The place of performance is the registered office of the contractor.
18.2 The court of jurisdiction for all legal disputes arising between the contractor and the customer in connection with this contractual relationship is the court having subject-matter jurisdiction for the contractor's registered office. Notwithstanding the foregoing, the contractor is entitled to sue the customer at its general place of jurisdiction.