General Terms and Conditions Austria

Here you will find the general terms and conditions (GTC) of catworkx GmbH Austria.

1. SCOPE

1.1 These general terms and conditions (hereinafter referred to as “GTC”) apply to all contracts, such as the granting of license rights, the creation and delivery of customized software, all maintenance, training, and consulting services, other services such as process and project management, and, if applicable, the delivery of hardware and software (hereinafter referred to as “Services”) which catworkx GmbH (hereinafter referred to as “CATWORKX”) provides to a customer (hereinafter referred to as “contractual partner”) (hereinafter referred to as the “contracts”).

1.2 Services provided by CATWORKX are based exclusively on these GTC in their current version. The General Terms and Conditions shall also apply to future contracts and to all further services to be provided in connection with the order placed, without CATWORKX having to refer to them again in each individual case.

1.3 The Contractual Partner has the option of viewing and printing the General Terms and Conditions on the Internet at www.catworkx.at. CATWORKX will send them to the contractual partner on request.

1.4 These General Terms and Conditions do not apply to legal transactions with consumers within the meaning of the KSchG (Consumer Protection Act).

1.5 Any deviating or supplementary terms and conditions of the contractual partner are hereby expressly rejected. These shall not become part of the contract unless CATWORKX expressly agrees to their validity in writing. By placing an order with CATWORKX or accepting an offer from CATWORKX, the contracting party waives the application of its own terms and conditions, in particular its defensive clauses.

1.6 If the contract concluded with the contractual partner deviates from these General Terms and Conditions, the provisions of the contract shall take precedence.

1.7 Employees of CATWORKX are not authorized to make any side agreements or give any assurances that alter or go beyond the content of the respective contract.

2. CONCLUSION OF THE CONTRACT

2.1 Offers and cost estimates provided by CATWORKX are always subject to change and non-binding until the contract is concluded with the contractual partner.

2.2 An order placed by the contractual partner constitutes a binding offer to enter into a contract.

2.3 A contract between the contractual partner and CATWORKX is concluded when CATWORKX accepts the contract by means of a written confirmation after receipt of an order or an offer, when a contract signed by both contractual partners is available, or when the actual provision of services has commenced.

3. SUBJECT MATTER OF THE CONTRACT / SCOPE OF SERVICES

3.1 General

3.1.1 The subject matter of the contract, the type and scope of the services to be provided by CATWORKX shall be governed by the respective contract. The services shall be developed on the basis of the information, documents, aids, and test data provided by the contracting party. A service description prepared by CATWORKX shall be checked by the contracting party for completeness and accuracy and approved with a note. If new requirements of the contracting party necessitate a change in the scope of services or the technology used, CATWORKX shall submit a new offer at the request of the contracting party.

3.1.2 Insofar as CATWORKX creates organizational concepts, (co-)designs specifications, process descriptions, makes suggestions or reports for project implementation, creates training or workshop documents, or otherwise incorporates services into software for or with the contractual partner within the scope of the cooperation, these services constitute work results of CATWORKX and trade secrets. The contractual partner shall only be entitled to the rights of use to these work results with the express written consent of CATWORKX. These shall be transferred to the contractual partner by CATWORKX in a separate letter after completion of the work.

3.1.3 CATWORKX shall select the employee who will provide a service. CATWORKX shall be entitled to replace employees at any time with other employees with the appropriate qualifications. CATWORKX is also entitled to have the services performed by qualified third parties.

3.1.4 CATWORKX reserves the right to change the services contractually agreed with the contractual partner or to make improvements, insofar as such changes or improvements are customary in the industry, necessary due to legal provisions, or reasonable for the contractual partner, taking into account the interests of CATWORKX.

3.1.5 If CATWORKX provides free services, these may be discontinued by CATWORKX at any time without prior notice.

3.1.6 If CATWORKX acquires copyrights to the work results within the scope of providing services, CATWORKX grants the Contractual Partner a simple, non-transferable, and non-exclusive license to use the work results in its business after full payment. All other rights to the work results remain with CATWORKX. In particular, the Contractual Partner is not entitled to allow third parties to use the work results, to grant sublicenses or, unless required by the nature of the service (such as the customization of a platform), to modify or further develop the work results. The Contractual Partner's participation in the provision of services does not confer any rights beyond those specified in the contract.

3.1.7 Services provided by CATWORKX that the Contractual Partner uses beyond the originally agreed scope of services shall be invoiced by CATWORKX at the actual personnel and material costs incurred, plus a reasonable fee. This shall be at least equal to the last fee agreed between CATWORKX and the Contractual Partner.

3.2 Special provisions for third-party software (standard software)

3.2.1 If the contractual partner obtains licensed standard software from CATWORKX, the contractual partner is obliged to comply with the license terms (terms of use) provided by CATWORKX when using this software. By ordering licensed standard software, the contractual partner confirms that they are aware of the scope of services and the license terms for this software.

3.2.2 Standard software is delivered under the terms and conditions specified in each individual case. In case of doubt, the contractual partner shall only be granted an unlimited, non-exclusive, non-transferable license. Rights of use for standard software that are granted in return for payment of a regular fee shall expire upon termination of the corresponding agreement, but no later than in cases of default in payment despite a written grace period.

3.2.3 With regard to software purchased by CATWORKX from third parties and sublicensed to the contractual partner, the contracting parties agree to exclude any warranty and liability, in particular for software errors. Upon request by the contractual partner, CATWORKX shall assign to the contractual partner any claims it has against its supplier.

3.2.5 By making software available for processing, modification, or further development by CATWORKX, the contracting party confirms that it is authorized to carry out the processing, modification, or further development.

3.2.6 The contracting party shall indemnify and hold CATWORKX harmless from any claims arising from a breach of the above obligations.

3.3 Special provisions for software created by CATWORKX (custom software)

3.3.1 For software created individually by CATWORKX, the scope of services is determined in the contract by a service description. The service description must be checked by the contractual partner for accuracy and completeness and, at the request of CATWORKX, expressly approved. CATWORKX is entitled to charge separately for any changes requested by the contractual partner that deviate from the service description and to set a new, appropriate service period. The delivery includes the program code executable on the designated systems and a program description. The rights to the programs and documentation remain entirely with CATWORKX. In case of doubt, the contracting party is only granted an unlimited, non-exclusive, non-transferable license to use the software. Rights of use to the software that are granted in return for payment of a regular fee shall expire upon termination of the relevant agreement, but no later than in cases of default in payment of the fee despite written notice of default.

3.3.2 The contracting party acknowledges that minor defects in the software cannot be completely excluded due to the nature of the subject matter of the contract. Unless expressly stated in the contract, CATWORKX does not guarantee and is not liable for (i) the delivered software meeting all of the contractual partner's requirements; or (ii) the delivered software working with other programs of the contractual partner; or (iii) the programs running without interruption and without errors; or (iv) all software errors being corrected.

3.3.3 CATWORKX's warranty and liability shall not cover, in particular, defects resulting from improper installation by the Contractual Partner or third parties, from improper operating conditions, atmospheric or static discharge, natural wear and tear, improper operation, modified operating system components, interfaces and parameters, the use of unsuitable organizational resources and data carriers, the unauthorized modification of the software by the Contractual Partner or third parties, or the transport of the goods.

3.3.4 The warranty is limited to reproducible (repeatable) defects in the program function.

3.3.5 If CATWORKX delivers hardware and software at the same time or provides other divisible services, any defects shall not entitle the Contractual Partner to withhold the agreed remuneration, assert warranty claims or withdraw from the contract, even with regard to the part of the services that is free of defects.

3.3.6 Custom software requires a program acceptance for the respective program package concerned. Acceptance shall be deemed to have taken place and the service provided by CATWORKX shall be deemed to have been fulfilled without reservation if the contractual partner uses the software in live operation, but no later than when the contractual partner accepts the custom software no later than 14 days after the delivery date announced by CATWORKX. The contractual partner may only refuse acceptance if the software has defects or is incomplete in relation to the service description in a way that significantly impairs its use or even renders it impossible. If the contractual partner unjustifiably refuses acceptance, the contractual partner shall be in default of acceptance and acceptance shall be deemed to have been effected.

3.3.7 A written record shall be made upon acceptance. This written record shall include at least the following: the participants present, the contractual partner's declaration to accept the service, any defects and omissions that are the subject of complaints, and the date of acceptance. If there are differences of opinion between the contracting parties regarding the defects, these shall be recorded in the written record. The written record shall be signed by both contracting parties. The acceptance shall be deemed complete upon signing of the written record by both parties. The signing of the written record shall not constitute acknowledgment of the defects by CATWORKX.

3.3.8 Obvious defects must be reported immediately upon acceptance, otherwise the contractual partner shall lose any warranty and compensation claims. They cannot be asserted at a later date.

3.4 Special provisions for firewalls and/or virus walls

3.4.1 In the case of firewalls/virus walls that have been set up, operated or checked by CATWORKX, CATWORKX shall endeavor to proceed with the greatest possible care and in accordance with the current state of the art. However, CATWORKX points out that absolute security and full functionality of firewall/virus wall systems cannot be guaranteed.

3.4.2 CATWORKX shall not be liable for any disadvantages arising from the circumvention or disabling of firewall/virus wall systems installed, operated or checked at the Contractual Partner's premises, or from system malfunctions or access difficulties.

3.5 Special obligations of the contractual partner

3.5.1 The contractual partner is obliged to provide CATWORKX with all information, details and documents necessary for the provision of the contractual services by the agreed date. CATWORKX is not obliged to check this information, details and documents for accuracy and completeness. If CATWORKX incurs additional work due to incorrect or incomplete information or for other reasons for which the Contractual Partner is responsible, this shall be invoiced separately by CATWORKX at the applicable hourly rates.

3.5.2 If the service is provided on the premises of the Contractual Partner, the Contractual Partner shall, upon request, provide CATWORKX with all the spatial and technical infrastructure necessary for the provision of the (service) performance in the required quality, in particular network components, connections, Internet connections, firewall systems, electricity including peak voltage compensation, space for equipment, workstations, air conditioning, room and building security.

3.5.3 The Contractual Partner shall be responsible for complying with the requirements for operation specified by the respective manufacturer and for any special safety precautions (e.g., safety cells).

3.5.4 Upon request, the Contractual Partner shall support CATWORKX in any problem analysis and troubleshooting, coordination of service provision, rectification of defects, and coordination of services.

3.5.5 The Contractual Partner is not entitled to issue technical or organizational instructions to CATWORKX employees and shall communicate all requests and comments regarding the provision of services exclusively to the contact person designated by CATWORKX.

3.5.6 If a service cannot be provided by CATWORKX for reasons for which the Contractual Partner is responsible, in particular because the Contractual Partner has violated its obligations to cooperate, has not reported defects or disruptions in a timely manner, or has not met agreed deadlines, the Contractual Partner shall reimburse CATWORKX for any additional expenses incurred as a result. In such a case, the deadlines agreed for the provision of services shall be extended in accordance with the delay for which the Contractual Partner is responsible.

4. TERMINATION OF PERFORMANCE OR PERMANENT OBLIGATIONS

4.1 Contracts concluded between CATWORKX and the contractual partner for the ongoing provision of maintenance, services, the granting of licenses, or other permanent obligations are concluded for an indefinite period, unless otherwise specified in an individual agreement.

4.2 In the case of a contractual relationship for a fixed term, it shall be automatically extended by the original term of the contract unless terminated by one of the contracting parties in writing with 3 months' notice before the end of the contract. If no agreement has been made regarding a waiver of termination, contracts concluded for an indefinite period may be terminated in writing at the end of a year with 3 months' notice. The date of receipt of the notice of termination shall be decisive for determining whether the notice was given in time. The rights of CATWORKX in the event of default of payment by the contractual partner as set out below in these GTC shall remain unaffected.

4.3 A contract may be terminated by either party at any time with immediate effect for good cause. Good cause entitling CATWORKX to terminate the contract without notice shall include, in particular, (i) default of payment by the contractual partner despite a reminder setting a grace period of two weeks; (ii) any use that violates statutory or contractual provisions; (iii) if the contractual partner violates a contractual provision that affects the rights of CATWORKX; (vi) in the event of a serious breach of essential contractual obligations.

4.4 CATWORKX is entitled to suspend or interrupt certain services if there is a reason justifying immediate termination of the contract. The decision between termination of the contract on the one hand and suspension or interruption of services on the other is at the discretion of CATWORKX.

4.5 All cases of immediate termination of the contract, discontinuation or interruption of services for reasons attributable to the contractual partner shall not affect CATWORKX's claim to remuneration for the contractually agreed term until the next termination date and to the assertion of claims for damages.

5. DELIVERY

5.1 The completion date for the services to be provided by CATWORKX or the delivery date shall be governed by the provisions of the contract concluded in each individual case.

5.2 All circumstances beyond CATWORKX's control, such as operational disruptions or delays on the part of a subcontractor, shall be deemed force majeure.

The occurrence of such circumstances shall extend the agreed deadlines for the provision of services accordingly and shall not entitle the contractual partner to withdraw from the contract or assert claims of any kind against CATWORKX.

5.3 If delivery or performance is impossible due to the circumstances listed in Section 5.2, CATWORKX shall be entitled to withdraw from the contract without the contractual partner being entitled to any claims whatsoever. This shall also apply if the aforementioned circumstances occur during an already existing delay.

5.4 Changes or extensions to the order requested by the contractual partner after the order has been placed shall extend the agreed deadlines for the provision of services accordingly.

5.5 In the case of orders comprising several parts, CATWORKX shall be entitled to make partial or advance deliveries and to invoice each individual partial delivery after delivery.

6. REMUNERATION / TERMS OF PAYMENT

6.1 The remuneration to be paid by the contractual partner shall be specified in the respective contract. Unless otherwise specified in the contract, the remuneration shall be exclusive of value added tax and any packaging and shipping costs.

6.2 In addition to the remuneration specified in the contract, the contractual partner shall reimburse CATWORKX for all cash expenses and reasonable expenses (e.g., travel expenses, accommodation costs) incurred in the performance of the contract. Travel time shall be considered working time and shall be charged at the agreed hourly rates. If taxes or duties are subsequently imposed, these shall be borne by the contractual partner.

6.3 Regularly payable fees shall increase in line with the change between the consumer price index (CPI) figure announced for January of the reference year 2020 (CPI 2020) and the CPI 2020 figure announced for January of the previous year, with effect from the first day of the respective calendar year. The starting point is the index figure published for January 2015. The increase may also be claimed retroactively, limited by the three-year statute of limitations.

6.4 If the contractual partner requests services outside normal business hours, these services will be charged at a rate of 100% of the hourly rates agreed in the contract, unless higher or lower surcharges have been agreed in individual contracts.

6.5 Unless otherwise agreed in the contract, invoices are payable within 14 days of the invoice date without any deductions. A payment shall be deemed to have been made on the day on which CATWORKX can dispose of it.

6.6 The offsetting of claims of the contractual partner against CATWORKX and any retention of contractual services by the contractual partner shall be excluded, unless the claim has been expressly recognized by CATWORKX or has been legally established.

7. DEFAULT OF PAYMENT

7.1 In the event of default of payment, CATWORKX shall be entitled, without prejudice to its other rights, (i) to postpone or suspend the fulfillment of its own obligations until such payment or other performance has been effected, (ii) to claim a reasonable extension of the delivery period, (iii) to demand payment of all outstanding claims arising from this or other transactions with the contractual partner, 

and (iv) charge default interest at a rate of 9.2 percentage points above the base interest rate p.a. on the outstanding amounts from the respective due date.

7.2 In the event of agreed partial payment, CATWORKX shall be entitled to assert forfeiture of the payment term and to demand payment of the entire outstanding invoice amount in the event of late payment of the installments.

7.3 In the event of default in payment, the contractual partner shall be obliged to reimburse CATWORKX for any necessary costs incurred in connection with appropriate extrajudicial collection measures (e.g., reminder and collection fees of a lawyer or a collection agency), but in any case EUR 40.00 (§ 458 UGB).

8. RETENTION OF TITLE

8.1 Delivered goods and software remain the unrestricted property of CATWORKX until all claims of CATWORKX arising from the business relationship with the contractual partner have been paid in full. The contractual partner is not entitled to pledge goods subject to retention of title or to assign them as security.

8.2 In the event of default in payment, imminent suspension of payments or in the event of enforcement proceedings against the contractual partner, CATWORKX is entitled to dismantle and/or otherwise take back the goods subject to retention of title without this being equivalent to a withdrawal from the contract. The contractual partner is obliged to surrender the goods.

8.3 In the event of seizure or other claims against the goods subject to retention of title by third parties, the contractual partner is obliged to point out CATWORKX's right of ownership and to inform CATWORKX immediately. All costs incurred by CATWORKX as a result of such access by third parties shall be borne by the contractual partner.

9. WARRANTY

9.1 CATWORKX only warrants that the delivered goods and services comply with the contractually agreed specifications upon delivery.

Public statements or other product and service information provided by CATWORKX, the manufacturer, or any person who identifies themselves as the manufacturer by affixing their name, trademark, or other distinguishing mark to the subject matter of the contract, particularly in advertising, shall not form part of the contract between CATWORKX and the contracting party.

9.2 Claims under the warranty must be asserted in court within 12 months of the date of performance or delivery, otherwise they shall be forfeited.

9.3 Obvious defects must be reported immediately upon delivery, hidden defects immediately after they become apparent. Notifications must be made in writing and include a detailed description of the defect. The burden of proof for the timely notification of defects lies with the Contractual Partner. If a complaint is not raised in good time, the service shall be deemed to have been approved.

9.4 If defects have been reported in good time, CATWORKX shall first be obliged to remedy them. If CATWORKX is unable to remedy the defect or considers this to be uneconomical, a corresponding price reduction shall be granted. A rescission by the contractual partner is excluded.

9.5 The contractual partner must always provide evidence that the defect in the service provided already existed at the time of delivery.

9.6 Recourse to CATWORKX in accordance with § 933b ABGB (Austrian Civil Code) is excluded.

9.7 CATWORKX shall in no event be liable for errors, malfunctions, or damage resulting from improper conditions, unauthorized changes to components or configurations, specifications provided by the contracting party, or specifications, organizational procedures, and processes changed after the service has been provided, as well as damage operating conditions that are outside the scope of the specification, or for software that has been modified by the contractual partner or third parties commissioned by them.

9.8 If a defect is due to information provided or cooperation by the contractual partner or to a breach of an obligation imposed on the contractual partner in these General Terms and Conditions or in the individual contract, CATWORKX shall be excluded from any obligation to remedy the defect free of charge.

10. LIABILITY

10.1 With the exception of personal injury, CATWORKX shall only be liable for damages in cases of intent or gross negligence.

10.2 CATWORKX shall not be liable for the loss or damage of data or information, business interruption, lost profits, indirect damages, frustrated expenses, or other consequential damages in any case, to the extent permitted by law.

10.3 Claims for damages by the contractual partner against CATWORKX shall become statute-barred one year after knowledge of the damage and the party responsible for the damage.

10.4 Any liability of CATWORKX towards the contractual partner shall be limited to the amount of the order value per year.

11. DATA PROTECTION

11.1 CATWORKX is entitled to store, process, and pass on personal data in compliance with the relevant data protection regulations within the scope of contract execution and for the purposes arising from the contract. The contractual partner cannot derive any legal consequences from the transfer of data due to legal obligations.

11.2 CATWORKX shall take state-of-the-art data security measures in accordance with industry standards. CATWORKX accepts no further liability.

11.3 The contractual partner agrees that CATWORKX may name the contractual partner as a reference customer for the purpose of marketing its own services and in compliance with the contractual partner's business secrets, and may publish the contractual partner's logo on CATWORKX's website and other advertising materials for this purpose. This consent may be revoked at any time.

11.4 CATWORKX shall also process data in an automated manner within the scope of the statutory provisions and delete it upon termination of the contractual relationship, unless further storage is necessary to fulfill CATWORKX's legal obligations.

11.5 The Contractual Partner acknowledges that CATWORKX is not obliged or entitled to store certain content data (from third parties) for the Contractual Partner for an unlimited period of time and to keep it available for retrieval. If the Contractual Partner does not retrieve such data within three working days, CATWORKX cannot accept any liability for its continued availability.

12. DATA SECURITY

CATWORKX will take all technically possible and reasonable measures to protect the data stored by it. It is not responsible if third parties nevertheless succeed in gaining access to the data in an unlawful manner.

To ensure the necessary protection of the data, the contracting party is obliged to keep passwords secret.

They shall be liable for all damages resulting from a breach of this obligation. Unless otherwise agreed, the contractual partner is responsible for backing up their own data. CATWORKX recommends that the contractual partner use a firewall system and a virus wall system.

13. OTHER PROVISIONS

13.1 Severability clause

If individual provisions of the General Terms and Conditions are or become invalid, void, and/or unenforceable, this shall not affect the validity and/or enforceability of the remaining provisions of the General Terms and Conditions.

The invalid provision shall be replaced by a valid, enforceable provision that comes as close as possible to the economic purpose of the invalid provision. This also applies to the supplementary interpretation of the contract in the event of contractual loopholes.

13.2 Confidentiality

The contractual partner is obliged to treat all non-public commercial or technical details that become known to it through its business relationship with CATWORKX as strictly confidential business secrets of CATWORKX. This confidentiality agreement shall remain in force even after termination of the contractual relationship. Upon termination of the contractual relationship, all documents and materials provided to one party by the other party shall be returned immediately.

13.3 Non-solicitation

The contractual partner undertakes not to employ or solicit, either directly or indirectly, any employees of CATWORKX or other third parties commissioned by CATWORKX to provide services during the term of the contract and for a period of 12 months thereafter. For each case of violation of this point, the contractual partner shall pay CATWORKX a contractual penalty in the amount of one year's gross income of the respective employee. The assertion of damages exceeding this contractual penalty remains unaffected.

13.4 Written form

Declarations, amendments, or additions to this contract must be made in writing and signed by an authorized representative of the company in order to be legally effective. The contracting parties agree that the written form requirement shall be deemed to have been met if the declarations, amendments, or additions are transmitted in PDF form. Agreements to deviate from this formal requirement must be made in writing. Verbal side agreements to the contract are invalid.

13.6 Place of performance / place of jurisdiction / applicable law

The place of performance is Vienna. The court with jurisdiction in Vienna shall have exclusive jurisdiction to settle all disputes arising from a contract between CATWORKX and the contractual partner, including those concerning the existence or non-existence of the contract. The contract is subject to Austrian law, excluding referral provisions and the UN Convention on Contracts for the International Sale of Goods.

13.7 Changes of address

The contracting parties shall notify the other party immediately of any changes to their business address. Documents shall be deemed to have been received by the other party if they have been sent to its last known address.