GENERAL TERMS AND CONDITIONS
of IoT Internet of Things GmbH, hereinafter referred to as “IoT”.
Scope
Basis of contract. IoT concludes contracts and provides services exclusively on the basis of the written quotations prepared by IoT, the respective valid version of any descriptions of services included in the quotation (e.g. individual documents or general brochures), price lists and these General Terms and Conditions.
Insofar as they are not merely project-specific (e.g. individual documents), the descriptions of services, price lists and General Terms and Conditions apply to all legal relationships between IoT and the client and therefore, from the first conclusion of a contract onwards, automatically form the basis of all further contracts concluded between IoT and the respective client in their most current version, even if express reference is no longer made to these price lists, product descriptions and General Terms and Conditions.
Future amendments. Amendments to IoT’s descriptions of services, price lists and General Terms and Conditions will be notified to the client in writing and shall be deemed agreed if the client does not object within two weeks. From the date the new agreement takes effect, the amendments to the General Terms and Conditions shall also apply to all other contracts still in progress.
Supplementary agreements. All forms of supplementary agreement, both prior to conclusion of the contract and during the term of the contract, require written form in order to be valid. This also applies to any departure from the written form requirement.
Contractual elements originating from the client. Specifications concerning the content of the services originating from the client shall become part of the contract, even if known to IoT, only if they are integrated into the quotation by IoT or otherwise expressly accepted by IoT, for example by reference to those specifications.
Legally constitutive elements originating from the client, such as general terms and conditions or contractual clauses, shall become effective, even if known to IoT, only if they are accepted by IoT with an additional note expressly covering these legal texts (such as “GTC accepted”). Otherwise, IoT expressly objects to the inclusion of the client’s legally constitutive elements, such as general terms and conditions or contractual clauses.
The mere acceptance by IoT of the client’s specifications concerning the content of the services therefore does not constitute acceptance of the client’s legal texts, even if those specifications contain legally constitutive elements (such as “Our GTC apply.”).
Procedure in the event of contradictions. In the event of contradictions between the quotation, any descriptions of services (project-specific documents, general documents), any price lists and IoT’s General Terms and Conditions, these shall apply in the order named. The more specific components therefore automatically amend the more general components of the contract.
In the event of contradictions between contractual elements of IoT and contractual elements of the client, all contractual elements of IoT shall take precedence.
Procedure in the event of invalidity. Should individual provisions of the contract be invalid or unenforceable, the invalid provision shall be replaced by a valid provision that comes closest to the economic sense and purpose of the invalid provision.
Conclusion of contract
Quotation by IoT. Quotations from IoT to the client, e.g. in the form of an individual quotation to the client or a non-individualised offer such as an order form, catalogue or web shop, are without exception subject to change and non-binding.
Offer by the client. If the client places an order on the basis of a quotation, or unsolicited, i.e. without a prior quotation from IoT, for example in the case of additional orders within ongoing business relationships, the client shall be bound by that order for two weeks from its receipt by IoT.
Acceptance by IoT. The contract is therefore only concluded upon acceptance of the order by IoT.
Acceptance shall generally take place by means of an order confirmation, unless IoT indicates that it accepts the order in another way, for example by taking action on the basis of the order in a manner apparent to the client.
Mere confirmation of receipt of the order does not yet constitute acceptance of the order.
Receipt. Where electronic means of communication or an electronic order management system to which both parties have access are used for submitting quotations and for acceptance, declarations submitted on working days, i.e. Monday to Friday excluding Austrian public holidays, between 08:00 and 16:00 shall be deemed received on the same day; declarations submitted outside these times shall be deemed received at 08:00 on the next working day.
Scope of services, order processing and the client’s duties to cooperate
Place of performance. The place of performance is IoT’s registered office.
Scope of services. The scope of the services to be provided follows from IoT’s written service description resulting from all components of the contract.
Information from other sources not included in the quotation (e.g. presentation materials, websites or catalogues) is not part of the service description. The client is obliged to check the service description for conformity with its requirements. After the order has been placed, changes to the service description are only possible by mutual agreement and may in particular result in changes to prices, deadlines and dates.
Agile project management. Where the order is carried out in agile form, the method of agile cooperation and, in any event, the detailed services to be provided shall be determined by mutual agreement in the course of project execution, unless already contained in the quotation.
Professional performance. Unless the written service description provides otherwise, IoT owes professional execution measured as at the time the quotation was submitted. Within the framework of the written service description, IoT has freedom of design in performing the services insofar as several professional means of execution exist.
Interchangeable services. Insofar as this is consistent with the objectives of the order, IoT is entitled to deviate from the service description and to replace services with other equivalent services.
Third-party services. IoT is entitled to perform the services itself or to make use of qualified third parties in providing the services (third-party services).
Agreed third-party services. Where IoT’s services are based, as agreed, on specifically defined services, components or rights of third parties, these services, components or rights constitute an agreed third-party service.
In this case, IoT’s contractual obligation consists exclusively in the professional commissioning, coordination and processing, but not in the professional execution of the agreed third-party services.
Divisible services. In the case of divisible services, IoT is entitled to make partial deliveries.
Forfeiture. The client must collect all services ordered from IoT or handed over to IoT for processing on time. In the event that collection does not take place on time, IoT is entitled to dispose of the items after three months at the client’s expense.
Dates and deadlines. Dates or deadlines stated by IoT are non-binding unless they are expressly designated as binding.
Contract term. Contracts for an indefinite period may be terminated subject to any minimum term and with three months’ notice to the end of a quarter.
Contracts connected with data centre services are concluded for an indefinite period and may be terminated subject to any minimum term with three months’ notice to the end of a calendar half-year.
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events – in particular default by the client in fulfilling its obligations as well as delays at IoT or at IoT’s contractors that are unforeseeable and unavoidable for IoT – shall extend deadlines or postpone dates by the duration of the unforeseeable and unavoidable event plus the duration of the organisational measures necessary in such a case. IoT shall notify the client of this in writing.
The client’s duties to cooperate. The client shall communicate to IoT in writing, without delay, without being requested to do so and in a form suitable for further processing, all information, and shall provide all services, that are necessary for the provision of the services by IoT.
This includes in particular the provision of a contact person for contract processing, the provision of documents, materials and facilities, coordination on order details, and the acceptance (release) of partial services and services.
If the need for information or services to be provided by the client only becomes apparent during the provision of the services by IoT, the client shall supply these without delay.
The client must itself check the information and services it provides for suitability, accuracy and legality.
The client is liable for all damage arising from deficient, delayed or omitted cooperation on the part of the client, and in particular also for the additional expense incurred by IoT as a result. If IoT is unable to perform the services as agreed due to deficient, delayed or omitted cooperation by the client, IoT is also entitled, without prejudice to other rights, to interrupt performance of the services, to insert other services for other clients, and to resume performance of the services for the client only after completion of those services, insofar as the client has by then fulfilled its duties to cooperate, as a result of which all dates and deadlines shall be postponed.
If third parties assert claims against IoT on account of an infringement of rights in connection with information or services provided by the client, the client shall also indemnify and hold IoT harmless and support IoT in defending against any third-party claims.
Scope of IoT’s duties of examination. IoT must perform the services in such a way that the services provided by IoT are not in themselves unlawful (e.g. use of a copyright-protected work without the author’s consent).
IoT is not, however, under any obligation to carry out a legal review of the services created by IoT for any infringement of third-party rights or for possible infringements of rights arising from the manner of use planned by the client (e.g. the use of a graphic as a logo).
Scope of the client’s duties of examination. The client must itself carry out, or have carried out by a suitably qualified legal expert, the legal reviews establishing that IoT’s services legally meet all of the client’s requirements, in particular with regard to administrative law, criminal law, competition law, trade mark law, the law on distinctive signs, design protection, copyright, personality rights and data protection law.
Rights in the services. In principle, all rights in the agreed services belong to IoT or to IoT’s licensors. The client receives the right to use the services, after full payment of the agreed fee, to the extent agreed with IoT or predefined by the licensors.
Where the scope of the licence has not been agreed, it comprises non-exclusive use for the client’s own internal business purposes, without any right to sub-license or transfer to third parties (or affiliated companies), whereby the right of modification is limited to the legally indispensable minimum.
In the case of server licences, the client receives the right to use the services created by IoT and defined in the scope of services, to the extent stated above (non-exclusive, no right to sub-license or transfer to third parties [or affiliated companies], use for the client’s own internal business purposes, right of modification limited to a minimum), on one server for a defined number of users.
In the case of a concurrent user licence, the client receives the right to use the services created by IoT and defined in the scope of services, to the extent stated above (non-exclusive, no right to sub-license or transfer to third parties [or affiliated companies], use for the client’s own internal business purposes, right of modification limited to a minimum), for a defined number of users. These users do not have to be designated by name.
In the case of a named user licence, the client receives the right to use the services created by IoT and defined in the scope of services, to the extent stated above (non-exclusive, no right to sub-license or transfer to third parties [or affiliated companies], use for the client’s own internal business purposes, right of modification limited to a minimum), for a defined number of users who are named individually and registered in the software.
In the case of an on-device licence, the client receives the right to use the services created by IoT and defined in the scope of services, to the extent stated above (non-exclusive, no right to sub-license or transfer to third parties [or affiliated companies], use for the client’s own internal business purposes, right of modification limited to a minimum), on one device of the client that is to be notified to IoT.
In the case of programming created individually for the client which has no connection to IoT software, the client receives the non-exclusive right to use the services without restriction after full payment of the agreed fee.
In the case of additional functions and additional modules created individually for the client which have a connection to IoT software, the client receives a non-exclusive right to use the service for its own internal business purposes for the duration of the contract.
The client is aware that IoT’s services are often based on works or services of third parties with a wide variety of licence conditions. The client must comply with these licence conditions of third-party services or works that form part of IoT’s services or works.
Right to the end product. The client has only a right to use the service in the agreed form as the end product, but not a right to receive the underlying materials, working aids, interim results, etc. required to create the services. Unless otherwise agreed, IoT is also under no obligation to retain these materials, working aids, interim results, etc. after completion of the work.
Right of audit. IoT is entitled to check compliance with the terms of use by means of personal inspections and technical measures.
A personal inspection by IoT is permissible without prior notice. For this purpose the client must, at the client’s option, either grant IoT access to the systems in question or demonstrate compliance with the licence conditions to IoT in accordance with IoT’s specifications.
Monitoring by technical measures is permissible on an ongoing basis. IoT is entitled to transmit the data necessary to check compliance with the licence, such as device data, user names and login data, to a monitoring system operated by IoT.
IoT is in every case bound to the strictest confidentiality. IoT is not entitled to use the data for other purposes and is obliged to delete the data immediately after the licence check, at the latest after one week.
Reference. IoT is entitled, in coordination with the client, to refer to IoT and, where applicable, to another author on all services created by IoT for the client and, subject to written revocation which is possible at any time, to use data such as the client’s name and logo, project description, project images and the like in IoT’s own advertising materials as a reference or as an indication of the business relationship with the client, without the client being entitled to any remuneration for this.
Confidentiality & non-solicitation
Duties of loyalty. The contracting parties are obliged to promote the reputation of the other contracting party and in particular not to criticise the other contracting party vis-à-vis third parties. This obligation applies indefinitely beyond any end of the contract.
Trade secrets. A trade secret is information which
- is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with this kind of information,
- has commercial value because it is secret, and
- is subject to reasonable steps, under the circumstances, to keep it secret by the person lawfully in control of the information.
Trade secrets include in particular the business ideas and business strategies pursued by IoT and their implementation, the details of the contracts concluded between the contracting parties and their subject matter, and in the case of software in particular its architecture, source code, developer and administration documentation as well as all other data from which the function of the software or of relevant parts of the software can be derived, and security-relevant data.
The client is obliged to ensure the secrecy of the trade secrets by technical and organisational measures and to prevent these trade secrets from being acquired, used or disclosed without authorisation.
Use by the client is permissible only to the extent agreed.
In the event of a breach of these obligations, the client shall pay a contractual penalty of EUR 50,000.00.
Non-solicitation. The client undertakes not to solicit any employees or suppliers of IoT. This obligation applies for three years beyond any end of the contract. In the event of a breach of these obligations, the client shall pay a contractual penalty in the amount of the gross annual salary of the solicited employee or the gross annual turnover of the solicited supplier.
Remuneration
Prices. All prices are quoted ex IoT’s registered office or place of business, in euros, plus value added tax at the statutory rate.
Cost estimates. Where a cost estimate is provided, it is non-binding. A cost estimate exists where the assessment of the anticipated expense is designated as a cost estimate.
If, after a non-binding cost estimate has been provided, it becomes foreseeable that the actual costs will exceed the costs estimated in writing by more than 15%, IoT shall inform the client of the higher costs in writing. The cost overrun shall be deemed approved by the client if the client does not object in writing within one week of this notification and, at the same time as the objection, gives written notice of a more cost-effective alternative. In the case of a cost overrun of up to 15%, no separate notification is required. Such a cost overrun shall be deemed approved by the client from the outset.
Billing on a flat-rate basis. Where billing takes the form of a flat rate, this covers all services necessary for the performance of the agreed services. Excluded are the costs of unforeseeable events, additional costs due to cooperation by the client that is not in accordance with the contract, and additional costs due to hidden defects in services provided by the client.
Billing on a time-and-expense basis. Where billing is based on expenditure, invoicing is based on actual expenditure. Billing on the basis of expenditure applies where the anticipated expense is stated as approximate, anticipated or estimated.
Hour pool. Where an hour pool is agreed for a specific period, this serves to secure a minimum availability of IoT for the client in the respective period.
Unused hours are therefore not transferable to subsequent periods but lapse, without this giving rise to any claim to a price reduction.
If the hour quota proves insufficient, IoT shall inform the client of this as early as possible. Exceeding the hour quota is permissible only with the client’s consent, unless exceeding it is necessary in order to take urgent measures to avert damage to the client and it is not possible to obtain the client’s consent in time.
Additional services. All services of IoT that are not expressly covered by the agreed fee, in particular additional services agreed at a later date, shall be remunerated separately.
Billing procedure. Upon placing the order, the client shall pay 50% of the agreed fee. Upon reaching agreed milestones and upon completion of the overall project, the client shall make partial payments of equal amounts in each case. The milestones are defined by mutual agreement between IoT and the client.
Partial services. In addition, IoT is entitled to invoice partial services. Partial services include in any event the individual items of the service description and, in the case of agile project management, the services provided within the individual sprints.
Advance payment. IoT is furthermore entitled, in the case of new clients, in the case of pass-through billing of agreed third-party services, where there is an appearance of economic difficulties, in the case of past default in payment and where there is an appearance of unwillingness to pay on the part of the client, to demand advance payments in the full amount of the partial services to be provided next, in order to cover its own expenditure.
Price adjustment. In the case of contracts for an indefinite period and contracts with automatic extension of the contract term, IoT is entitled to make a reasonable price adjustment annually, taking into account the consumer price index.
IoT is also otherwise entitled, after conclusion of the contract, to make a reasonable price adjustment if the costs of the services increase by more than 3% without this being within IoT’s control. IoT must provide evidence of the cost increase and substantiate the absence of any possibility of influencing it.
Unjustified withdrawal. In the event that the client withdraws from its order in whole or in part without blatantly gross negligence or intent on the part of IoT, IoT shall nevertheless be entitled to the agreed fee. In this case IoT need only allow savings from purchases not yet made to be set off. The same applies if IoT withdraws from the contract for good cause lying within the client’s sphere.
Payment
Due date. IoT’s invoices are due without any deduction from the invoice date.
Payment period. IoT’s invoices are to be paid within 7 days of receipt of the invoice.
Payment in online transactions. In online transactions, IoT’s invoices are to be paid when the order is placed.
Bank transfer. In principle, payment must be made by transfer to the bank account. Cash payment is excluded.
Direct debit. In addition, payment by SEPA business-to-business direct debit is possible. Where a SEPA direct debit mandate is signed, IoT is entitled to collect the invoice amount from the client’s account 7 days after dispatch of the invoice.
Other means of payment. The client is further entitled to use all other means of payment offered by IoT. The debit is made at the moment of payment by the client.
Agreed third-party services. IoT is entitled, at its own discretion, to commission the third-party service either in its own name or in the client’s name, and either for its own account or for the client’s account.
Where IoT concludes the contract in its own name and/or for its own account, this is done exclusively in the client’s interest for the purpose of simplified contract and payment processing.
Retention of title. Until full payment by the client, retention of title in favour of IoT in the goods delivered by IoT shall be deemed agreed until full payment of the purchase price and of all associated interest and costs. In the event of default, IoT is entitled to assert rights arising from the retention of title. In this case, the client consents to the collection of the goods by IoT. Assertion of the retention of title by IoT does not constitute withdrawal from the contract unless IoT expressly declares withdrawal from the contract.
If the client resells the goods, the client assigns its claim against the purchaser to IoT by way of security. IoT is entitled to notify the purchaser of this assignment.
Prohibition of set-off and retention. The client is not entitled to set off its own claims against claims of IoT, even in the case of connected claims, unless the client’s claim has been acknowledged in writing by IoT or established by a court. A right of retention in favour of the client is excluded.
Payment by instalments. Where IoT and the client conclude an instalment payment agreement, loss of the benefit of the instalment term shall be deemed agreed in the event that even a single instalment is not paid on time.
Default in payment. In the event of late payment, the statutory interest applicable between entrepreneurs, but at least 9% per annum, shall be payable. The client shall bear all costs and expenses associated with collecting the claim, in particular debt collection charges or other costs necessary for appropriate legal action.
Continued default in payment. Following an unsuccessful reminder to the client setting a grace period of at least 7 days, IoT is entitled to invoice and call due immediately all services and partial services already provided, including those provided under other contracts concluded with the client, and to temporarily suspend the provision of services not yet paid for until all outstanding fee claims have been paid in full.
Following a further unsuccessful reminder addressed directly to the client’s management and again setting a grace period of at least 7 days, IoT is entitled to withdraw from all contracts and to claim compensation for lost profit. IoT is thereby also entitled not to perform, or to discontinue, services already paid for.
Irrespective of these options, IoT may of course also file suit in court immediately after the due date has passed.
Liability
Classic contract for work and services. In the case of a classic contract for work and services, IoT is liable for achieving the objective.
Agile project management. In the case of agile project management, IoT is liable for achieving the objective only if the objective was defined with sufficient clarity before conclusion of the contract. Otherwise, IoT is liable only for the performance, in accordance with the order, of the detailed services defined jointly with the client in the respective project phases.
Purchase of resources. In the case of the mere purchase of resources such as working time, the client is itself responsible for achieving the objective. IoT is liable only for the performance, in accordance with the order, of the specifically commissioned detailed services.
Interventions by the client. If the client intervenes in IoT’s services on its own authority in a manner not agreed, or makes changes that are undocumented or no longer easily traceable for IoT, the client is liable for the resulting additional expense incurred by IoT, e.g. for completion, re-examination, documentation, identification of defects, allocation of defects and rectification of defects.
Passing of risk. When goods are shipped, the risk always passes to the client as soon as IoT has handed the goods over to the carrier. Goods are generally shipped uninsured unless the client has instructed IoT, at the client’s expense, to insure the goods.
Duty to give notice of defects. After IoT requests an interim acceptance, after handover and after the commencement of live operation, the client must in any event accept (“release”) the services handed over or to be accepted in writing within 8 days at the latest, or give written notice of any defects or damage.
In the case of an interim acceptance, IoT can only continue its work once the interim acceptance / “release” has taken place. If acceptance or notice of defects is not given in time, the services shall be deemed automatically accepted by the client.
Hidden defects or damage that only appear after the expiry of 8 days but within open guarantee, warranty or damages periods must likewise be notified by the client within 8 days of becoming apparent.
The duty to give notice covers all defects or damage that the client ought to identify, exercising the diligence of a prudent business person, upon appropriate inspection. In the case of interim acceptances, given their particular importance in avoiding defects which would otherwise run through all subsequent steps of performance, the inspection must correspond to a final, detailed and especially careful inspection. On handover, the inspection must correspond to an initial but nonetheless precise inspection. Upon the commencement of live operation, given the particular importance of this step in avoiding damage during operation, the inspection must again correspond to a final, detailed and especially careful inspection.
The client’s notice must describe the defect or damage in detail and in a comprehensible manner. In the case of defects or damage that do not occur constantly, the exact times and circumstances of their occurrence must be stated. The client must enable IoT to take all measures necessary to investigate and remedy the defects or damage. If the client fails to give notice of defects in time, the assertion of guarantee, warranty and damages claims as well as claims under other liability rules, in particular recourse claims, by the client is excluded.
Guarantee. Insofar as parts of the contractor’s services are covered by a guarantee granted by a third party, that guarantee must be asserted directly against the third party (e.g. manufacturer’s guarantee).
Where a guarantee is given by IoT, the period for asserting the guarantee claim begins on handover. The guarantee claim lapses six months after the client becomes aware of the occurrence of the guarantee event, but at the latest upon expiry of the guarantee period. If the content of the guarantee is not apparent from the guarantee undertaking, IoT is liable for the ordinarily expected characteristics.
Warranty. The right to warranty and the right of warranty recourse are limited to six months from handover.
Deviations from technical ÖNORM standards or from the state of the art shall under no circumstances entitle the client to a claim where the work has sufficient functionality.
The client is entitled to improvement or replacement or, in the case of non-material defects, also to a price reduction or, in the case of material defects, also to rescission, at IoT’s option. Rectification of the defect neither extends the warranty period nor causes it to start running anew for the part of the service affected by the rectification.
Obligation to provide updates. The obligation to provide updates under § 7 VGG is excluded.
Mistake, laesio enormis. The right to challenge the contract on the grounds of mistake and on the grounds of laesio enormis (reduction by more than half) is excluded.
Damages and other claims. Claims for damages and claims under other liability rules, in particular recourse claims, of the client are excluded insofar as they are not based on blatantly gross negligence or intent on the part of IoT.
Such claims lapse six months after knowledge of the damage and of the party causing it; in any event three years after the infringing act.
Claims based on personal injury and on other mandatory liability provisions are exempt from this exclusion of liability.
Protective effect in favour of third parties. It is expressly agreed that this contract has no protective effect in favour of third parties.
Liability for agreed third-party services. Those third parties who provide the agreed third-party services are not vicarious agents of IoT, do not act in pursuit of IoT’s interests and are therefore also not included within IoT’s sphere of risk.
For the agreed third-party services themselves, but not for their professional commissioning, coordination and processing, any fault-based liability of IoT is therefore additionally reduced to fault in selection, and any no-fault liability of IoT is excluded.
If the third-party services are used at the client’s instruction, i.e. selected by the client, any liability of IoT is excluded.
Liability for services provided free of charge. Insofar as IoT provides services or parts of services free of charge, any liability for those parts of the services is excluded.
Burden of proof. A reversal of the burden of proof to IoT’s detriment is excluded. In particular, the existence of the defect at the time of handover, the time at which the defect was identified, the timeliness of the notice of defects and the existence and degree of fault must be proven by the client.
Grace period. In the event of contractual performance not in accordance with the agreement, the client is only entitled to assert claims once it has granted IoT a reasonable grace period in writing of at least fourteen days. This also applies to termination of the contract for good cause.
Withdrawal from the contract. Withdrawal from the contract by the client must be declared in writing by registered letter.
Final provisions
Applicable law. Austrian law, excluding its international conflict-of-law rules, applies exclusively to all legal relationships and circumstances between the client and IoT.
UN Sales Convention. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
Contractual ÖNORM standards. Unless contractual ÖNORM standards have been expressly agreed, they do not apply.
Dispute resolution. All disputes arising out of this contract or in connection with this contract, or concerning its validity, shall be finally decided under the Arbitration Rules of the Salzburg Arbitration Court (“Salzburg Rules”) by an arbitral tribunal appointed in accordance with those rules. The place of arbitration is the City of Salzburg. The arbitral tribunal shall consist of one arbitrator. Austrian substantive law applies, excluding the UN Sales Convention. The language of the arbitration proceedings is German.