General Terms and Conditions of fiskaltrust consulting gmbh – 01.12.2023
I. Scope, Supplementary Terms and Conditions of Contract
1.1 The General Terms and Conditions (GTC) of fiskaltrust Österreich GmbH (hereinafter called “fiskaltrust”) apply to all contractual relationships with customers in connection with deliveries and services of fiskaltrust and are considered an integral part of the contract, unless otherwise agreed in writing in an individual agreement between fiskaltrust and the customer. The GTC shall also apply to future business relations with the same customer without fiskaltrust having to point out their validity for each individual contract with this customer.
1.2 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of a customer shall only become part of the contract if and insofar as fiskaltrust has expressly agreed to their validity in writing. This requirement of consent applies in any case, in pa rticular also if fiskaltrust carries out a delivery or service to the customer without expressly rejecting any provision in the customer’s general terms and conditions.
1.3 Only managing directors and authorised signatories of fiskaltrust are entitled to agree delivery and service conditions of any kind deviating from these GTC.
1.4 The following references to the validity of legal regulations are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply, insofar as they are not directly amended by the following GTC.
II. Offers, Conclusion of Contract
2.1 The offers of fiskaltrust are subject to change and non-binding. This provision shall also apply if fiskaltrust has provided the customer with catalogues, product descriptions or technical documentation (e.g. user manuals, assessments, cost evaluations) to which fiskaltrust reserves ownership and copyrights, in advance of the conclusion of the contract.
2.2 Each order of software programmes or commissioning of other services by the customer is considered a binding offer of contract, unless otherwise stated in the order or commissioning or other agreements. fiskaltrust is entitled to accept this offer of contract within four weeks of receipt by fiskaltrust. Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the software programmes or provision of other services to the customer.
2.3 The customer’s purchasing conditions are excluded from the business relationship unless fiskaltrust expressly agrees to them in writing
III. Delivery, Dispatch, Transfer of Risk
3.1 Deliveries of software programs (data carriers, user manuals, other documentation – if available) or other goods shall be EXW (Ex Works) in accordance with INCOTERMS (International Commercial Terms). At the Customer’s request, the software programs or other goods shall be shipped to another destination. Unless self-collection or collection by third parties has been agreed and the customer has not given any special instructions, fiskaltrust is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
3.2 Delivery times are only considered to be binding if they have been expressly guaranteed by fiskaltrust in written form, as binding. If delivery periods have been agreed upon in a binding manner, fiskaltrust will not be in default without a written reminder from the customer.
3.3 The observance of deadlines for deliveries presupposes that the customer provides all information required for the delivery in good time, in particular that he performs the cooperative acts incumbent upon him. If this condition is not met, the delivery period shall be extended accordingly. This shall not apply if fiskaltrust is responsible for the delay.
3.4 If fiskaltrust does not receive deliveries or services from a subcontractor, or does not receive them correctly or on time, despite proper procurement, for reasons for which fiskaltrust is not responsible, or if events of force majeure occur, fiskaltrust shall inform the customer in writing (including electronic writing) in reasonable time. In this case, fiskaltrust shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part with regard to the unfulfilled part of the contract, provided that fiskaltrust has complied with the aforementioned duty to inform and has not assumed the procurement risk. Force majeure is equal to illegal strikes and lock-outs, official interventions through no fault of our own, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, for example due to fire, water and machine damage and all other hindrances which are unforeseeable from an objective point of view and which have not been deliberately caused by fiskaltrust. If a delivery date or a delivery period has been agreed in a binding manner and if the agreed delivery date or the agreed delivery period is exceeded due to events in accordance with this provision, the customer is entitled to withdraw from the contract after the expiration of a reasonable grace period with regard to the part not yet fulfilled, if it is objectively unreasonable to expect the customer to continue the contract. In this case, the customer shall have no further claims against fiskaltrust.
3.5 fiskaltrust is entitled to make partial deliveries and provide partial services. This shall not apply if the customer has no interest in the respective partial delivery or service.
3.6 If fiskaltrust is culpably in default, the customer may demand compensation for damages. Further statutory claims shall remain unaffected.
3.7 If delivery is impossible, the customer is entitled to claim damages, unless fiskaltrust is not responsible for the impossibility. The customer’s right to withdraw from the contract remains unaffected.
IV. Fees, Terms of Payment
4.1 Unless a price has been expressly agreed upon, the amount of the price for the respective delivery or service is based on the fiskaltrust price list valid at the time of the order confirmation. Prices are net, from the stock, without discounts and plus the statutory value added tax.
4.2 fiskaltrust expressly reserves the right to refuse cheques or bills of exchange. Their acceptance is always only on account of performance. Discount and bank charges shall be borne by the customer and are due immediately. If the customer authorises invoices from abroad, the costs associated with the receipt of payment shall be borne by the customer.
4.3 Invoices are due and payable without deduction within 14 days of receipt of invoice, unless otherwise agreed in the order confirmation. Upon expiry of this period, the customer is in default. If the Customer is in default of payment, the default interest rate will be charged at the usual bank rate.
4.4 Insofar as no fixed prices have been agreed, fiskaltrust reserves the right to change prices appropriately if, after conclusion of the contract, material procurement or production costs, taxes, wage and ancillary wage costs as well as energy costs and costs due to environmental regulations increase and if there are more than two months between conclusion of the contract and delivery.
4.5 The customer is only entitled to compensation if his counterclaims have been legally established, are ready for decision in a legal dispute or have been recognised in writing by fiskaltrust. In addition, the customer may only exercise a right of retention if the claim on the basis of which he is withholding payment is based on the same contractual relationship and has either been legally established, is ready for decision in a legal dispute or has been recognised by fiskaltrust.
4.6 If the customer defaults on payments in a substantial amount, fiskaltrust shall be entitled to further services, to which fiskaltrust has committed itself, to temporarily suspend these services and make all outstanding amounts from the relationship immediately due for payment. In this case, any agreed deadlines or periods for the execution of outstanding deliveries and services on the part of fiskaltrust shall lapse without the need for special notification by fiskaltrust.
V. Price adjustments
5.1 If no fixed price has been agreed, fiskaltrust reserves the right to pass on any price increases, regardless of what type, to the contractual partner to an appropriate extent. This includes material procurement or production costs, taxes, wage and ancillary wage costs, legal changes to import duties restrictions on subsidies, increases in energy costs and costs due to environmental regulations, etc.
5.2 An annual value adjustment is agreed with the customer, which is based on the consumer price index published monthly by Statistics Austria or the index officially replacing it. The effective date for the price adjustment due to value preservation is always on January 1st of each year and is adjusted automatically. If contracts are concluded in the last quarter of a year, the index adjustment takes place on January 1st of the year after next. If fiskaltrust fails to make an adjustment, this does not mean that the right to adjust the index is generally waived and can also be done at a later date. However, a reduction of the contractually agreed price is excluded in any case, regardless of the reference value of the index adjustment.
VI. Retention of Ownership and Rights
6.1 fiskaltrust reserves all rights to the deliveries or services until all claims, including future claims, from an ongoing business relationship have been completely settled. This applies in particular to the ownership of the goods delivered (e.g. data carriers, user manuals, other documentation, etc.) as well as to intellectual property rights (e.g. copyrights to software programmes and user manuals).
6.2 Deliveries or services provided by fiskaltrust may not be assigned to third parties or provided as security before the secured receivables have been paid in full. The customer must inform fiskaltrust immediately, in writing, if and to the extent that third parties have access to the goods or services.
6.3 If the customer acts in breach of the contract, in particular if the fees due are not paid, fiskaltrust is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of any delivered goods (e.g. data carriers, user manuals, etc.) on the basis of the retention of ownership and the right to withdrawal and to revocation from the customer any intellectual property rights (e.g. rights of use of software programmes).
6.4 Insofar as the customer is entitled to resell the deliveries received from fiskaltrust in the ordinary course of business, which may be the case, for example, with sales partners of fiskaltrust, the customer hereby assigns to fiskaltrust all claims in the amount of the final invoice amount (including value added tax) of fiskaltrust’s claim which accrue to the customer from the resale against his buyers or third parties. The customer remains authorised to collect this claim even after the assignment. The authority of fiskaltrust to collect the claim itself remains unaffected However, fiskaltrust undertakes not to collect the claim as long as the customer fulfils his payment obligations, does not fall into arrears and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, fiskaltrust may demand that the customer informs fiskaltrust of the assigned claims and their debtors, provides all information necessary for collection, surrenders the associated documents and informs the debtors of the assignment. fiskaltrust undertakes to release the existing securities at the customer’s request insofar as the realisable value of the securities exceeds the claims to be secured by more than ten (10) per cent; the choice of the securities to be released is at the discretion of fiskaltrust.
VII. Notification of Defects, Obligation of Customer to Cooperate
7.1 The customer is obliged to inspect deliveries and services immediately after receipt of the delivery or service for completeness and obvious defects, in particular also for obvious shortfalls or damage, and to notify fiskaltrust in writing of any defects discovered within a further 24 hours at the latest, stating the order data and the invoice number. In the case of non-obvious (hidden) defects, the customer is obliged to notify these to fiskaltrust in writing within two (2) working days after discovery, observing the above-mentioned requirements for notification of defects. Timely dispatch of the respective notice of defects shall suffice to meet the deadline. If the customer fails to make the notices of defects specified above, liability for the defect not notified is excluded. The customer shall bear the burden of proof for the compliance and timeliness of the obligation to give notice of defects as well as for the existence and time of discovery of a defect.
7.2 In order to avoid damage, the Customer is required to ensure that its data stock is backed up daily in accordance with the latest technology.
7.3 Claims for defects shall not exist in the event of an insignificant deviation from the agreed or assumed quality and in the event of only insignificant impairment of the usability. Performance descriptions shall not be deemed to be a guarantee unless agreed separately in writing. In the case of update deliveries, claims for defects shall be limited to the innovations of the update delivery compared to the previous version status.
7.4 If the customer demands subsequent performance due to a defect in a service or delivery, fiskaltrust has the right to choose between rectification of the defect, replacement delivery or substitute performance. Subsequent performance can also be effected by installing a new program version or a bypass solution. If the defect does not or only insignificantly impair the functionality of the operating platform, fiskaltrust is entitled, to the exclusion of further claims for defects, to remedy the defect by delivering a new version or an update within the scope of its version and update planning.
7.5. The customer shall provide any necessary cooperation free of charge within the scope of the service provision owed by fiskaltrust. This includes in particular that the customer provides all information necessary for fiskaltrust, e.g. regarding the customer’s objectives and requirements, without being asked and in due time. Furthermore, the customer shall make available in good time any facilities that may be required for the installation or operation of the supplies or services.
VIII. Liability
8.1 The liability of fiskaltrust as well as that of fiskaltrust’s legal representatives and vicarious agents is governed by the statutory provisions in case of intentional or gross negligence. Liability for all damages incurred is limited to 50% of the sum of the fees owed in one contract year. The decisive factor is the contract year in which the claim arose. If contractual agreements have been made that provide for the right to price reduction, conversion or penalty payments, these are also included in the maximum liability limit. The limitation of liability does not apply to personal injuries caused by fault.
8.2 Apart from that, the liability of fiskaltrust, as well as, of fiskaltrust’s legal representatives and vicarious agents for slight negligence is excluded, with the exception of personal injury.
8.3 Due to a breach of duty which is not based on a defect, the customer can only withdraw from the contract, providing the other legal requirements are met, if fiskaltrust is responsible for the breach of duty. Withdrawal is excluded if the breach of duty is insignificant.
8.4 fiskaltrust is not liable for the loss of data if the damage would not have occurred in the customer’s area of responsibility had the data been properly backed up. A proper data backup is to be assumed if the customer verifiably backs up his data stocks daily in machine-readable form and thus ensures that the data can be restored with reasonable effort. The liability of fiskaltrust for loss of data – as far as it is not intentionally or grossly negligent – is limited to the typical restoration effort that would have occurred with proper data backup.
8.5 Likewise, fiskaltrust shall not be liable if software errors occur after changes in the conditions of use and operation, after operating errors, after interventions in the software programme, such as changes, adjustments, connections with other programmes and/or after use contrary to the contract, unless the customer proves that the errors were already present at the time of delivery of the delivery or service or that they have no causal connection with the above-mentioned events.
8.6 Insofar as the liability of fiskaltrust is excluded or limited, this also applies to the personal liability of non-executive employees and other vicarious agents of fiskaltrust. The exception of contributory negligence remains open.
8.7 Insofar as claims for damages are excluded or limited in accordance with the preceding paragraphs, this exclusion or limitation shall also extend in each case to damages in addition to performance and damages in lieu of performance, irrespective of the legal grounds.
8.8 If the rights of a third party or the customer’s vicarious agents are legitimately asserted against fiskaltrust, fiskaltrust must be given the opportunity to correct this violation.
IX. Setting of Time Limits, Threat of Damages, Withdrawal and Termination
9.1 If the Customer is legally entitled to claim damages in lieu of performance or reimbursement of expenses after a reasonable period of time set by the Customer has expired without success, such setting of a period of time must additionally contain an express warning by the Customer that he will assert such remedies after expiration of the period of time.
9.2 The above clause shall apply mutatis mutandis if the Customer is legally entitled to withdraw from the contractual relationship with fiskaltrust or to terminate it without notice for good cause after a reasonable period of grace set by the Customer has expired without result.
X. Non-Disclosure, Confidentiality
10.1 Insofar as the contracting parties exchange confidential information of a commercial or technical nature or if one party becomes aware of confidential information from the part of the other party which is usually regarded as a business secret, such as customer data, they undertake to treat this information as strictly confidential and not to make it available to third parties or use it in any way outside the execution of the respective contract without the consent of the other contracting party. Excluded from the mutual obligation of secrecy is such information which can be proven to be
a. are generally known or become known without the intervention of a Contracting Party;
b. become known to a contracting party from another source which is not obliged to maintain secrecy vis-à-vis the other contracting party;
c. must be disclosed by a contracting party (in particular to courts, law enforcement agencies and authorities) due to mandatory legal provisions.
10.2 Each contracting party undertakes to return all confidential information provided by the other contracting party to the other contracting party at any time upon request or, at the latter’s option, to destroy such information without retaining any copies or records; this shall not affect the archiving of documents for the fulfilment of statutory retention obligations. Internal records, compilations and evaluations containing confidential information shall be destroyed immediately upon request of the other party to the contract; electronically transmitted and/or stored confidential information shall be deleted. The destruction/deletion carried out shall be confirmed in writing to the other contracting party upon request.
10.3 The term of the confidentiality obligation shall outlast the term of the respective contract by two (2) years.
10.4 However, fiskaltrust shall remain entitled to transfer to licensors files which may contain business secrets, e.g. customer data, in order to solve the questions and problems posed by the customer in connection with the software research provided by fiskaltrust. In this case, fiskaltrust also obliges the licenser to maintain secrecy
XI. General
11.1 The legal relations between fiskaltrust and the customer shall be governed by the law of the Federal Republic of Austria, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.2 Salzburg is agreed as the place of jurisdiction. The same also applies if the customer does not have a general place of jurisdiction in Germany. However, fiskaltrust is also entitled to sue at the customer’s registered office.
11.3 Any changes or additions to these General Terms and Conditions must be made in writing; This also applies to the lifting of the writing requirement.
11.4 The ineffectiveness of individual regulations does not affect the effectiveness of the remaining regulations. In this case, the customer and fiskaltrust undertake to agree on effective regulations that come closest to the intended economic purpose of the ineffective regulations. This applies accordingly to closing any gaps.
fiskaltrust consulting gmbh
Alpenstraße 99/2.OG/02
A-5020 Salzburg
info@fiskaltrust.eu
www.fiskaltrust.eu
+43 662 2345 25 0
01.12.2023