GENERAL TERMS AND CONDITIONS for the provision of organizational and programming services, the granting of work usage permits and other usage rights to programs as well as the sale and delivery of software products by MicroSea System Solutions GmbH (hereinafter referred to as: MicroSea), Handelskai 94-96, 1200 Vienna

In business transactions with MicroSea, the General Terms and Conditions (GTC) of MicroSea apply exclusively. Terms and conditions of MicroSea’s contractual partners, hereinafter referred to as the Client, are not part of the contract and are expressly contradicted by MicroSea. Other terms and conditions do not bind MicroSea even if MicroSea does not object to these terms and conditions again upon conclusion of the contract. MicroSea’s General Terms and Conditions are deemed to have been accepted at the latest upon receipt of the service from MicroSea.

All orders and agreements are only legally binding if they are countersigned by MicroSea in writing and on behalf of the company and are only binding to the extent specified in the order confirmation. Offers from MicroSea are always subject to change.

2.1 The development of individual software and database concepts as well as functional specifications (requirement descriptions) for individual software by MicroSea takes place on the basis of the binding information and documents to be provided in full by the Client. This also includes the required test data in the scope requested by MicroSea as well as the test options specified by MicroSea, which the Client provides in a timely manner and free of charge. If the Client is already working in live operation on the system provided for testing, the Client is solely responsible for backing up the live data.

2.2 The contractual basis for MicroSea’s services is the written service description (technical documentation), which MicroSea prepares at the Client’s expense based on the information provided by the Client. This service description must be checked by the Client for correctness and completeness. The correctness and completeness of the service description must be confirmed by the Client to MicroSea in writing. Subsequent changes to this service description must be commissioned separately and paid for separately.

2.3 Software and program modifications created by MicroSea for the client must be accepted by the client within 4 weeks of delivery. Acceptance shall take place by signing an acceptance protocol. If the Client does not sign the acceptance protocol within the 4-week period or uses the software supplied by MicroSea in live operation, the delivery from MicroSea is deemed to have been accepted.

If MicroSea’s deliveries deviate from the service description, the deviations must be reported to MicroSea immediately by the Client and the deviations must be described in detail by the Client. Insofar as the use of the software in live operation is not possible or cannot be continued due to deviations from the service description, a renewed acceptance must be carried out after the condition specified in the service description has been established.

2.4 Should it turn out that the execution of the order in accordance with the service description is actually or legally impossible, MicroSea is obliged to notify the Client of this circumstance immediately. If the client does not change the order in such a way that execution becomes possible, MicroSea can refuse (further) execution and withdraw from the contract immediately. If MicroSea withdraws from the contract, MicroSea is entitled to remuneration and reimbursement of costs for the services rendered up to the withdrawal.

2.5 The dispatch of program carriers, documentation and service descriptions shall be at the expense and risk of the client. Training services by MicroSea are to be paid for separately by the Client.

2.6 MicroSea is entitled to have its services carried out by third parties without restriction.

3.1 All prices are in euros plus VAT ex works MicroSea. The costs of program carriers (such as CD, DVD, USB sticks, online storage (cloud service), etc.) as well as any contract fees will be invoiced separately. The prices are subject to change, unless MicroSea expressly promises binding prices.

3.2 For software libraries and standard programs, the MicroSea list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting), the workload will be charged at the rates valid on the day the service is provided.

3.3 If invoicing is agreed according to hourly rates, MicroSea’s hourly rates are applied, which are listed on MicroSea’s website at the time the service is provided.

3.4 Cost increases that occur after the conclusion of the contract can be claimed by MicroSea. This applies in particular to increases in MicroSea’s wage, material and other costs on which MicroSea’s price calculation is based.

3.5 The costs for travel, daily and overnight allowances will be invoiced separately to the Client according to the applicable rates. Travel time is considered working time.

4.1 MicroSea will adhere to the agreed dates of fulfillment (completion) as closely as possible as soon as the Client has provided MicroSea with all information necessary for order processing.

4.2 MicroSea is not responsible for delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed information provided by the client. Any additional costs incurred by MicroSea as a result shall be borne by the client.

4.3 MicroSea is entitled to make partial deliveries and to invoice these partial services, insofar as the services to be provided by MicroSea are divisible.

5.1 Unless otherwise agreed, invoices issued by MicroSea are payable within 14 days of receipt of the invoice without any deductions and free of charges.

5.2 MicroSea is entitled to discontinue its own services if the Client is in arrears with payments to MicroSea. MicroSea is entitled to withdraw from the contract if the Client does not remedy the default after setting a grace period of 5 working days and announcing the withdrawal from the contract.

In the event of default of payment on the part of the client, MicroSea is also entitled to block the client’s access to the application of the software until all outstanding amounts have been paid in full, provided that the client has previously been given a reminder setting a 14-day grace period and threatening to block the application and the grace period has elapsed unsuccessfully. In this case, the client shall remain obliged to continue to pay the contractual remuneration due, in particular the monthly license and maintenance costs. To enforce this application block, MicroSea is also entitled to gain unauthorized access to those servers on which the software is operated by the Partner. The Partner is obliged to guarantee MicroSea this access and to take all necessary actions, in particular to disclose the necessary access information and – if the software is operated on servers of a third party – to make the necessary declarations to third parties.

5.3 The Client is not entitled to withhold payments due to alleged defects and to offset its own claims against the remuneration owed by the Client to MicroSea.

Unless another place of performance is expressly agreed, the place of performance is the respective registered office of MicroSea’s management. Unless expressly agreed otherwise, MicroSea will provide the services during business hours, which are published on MicroSea’s website.

7.1 All copyrights to the services provided by MicroSea (such as programs, documentation) remain with MicroSea or with MicroSea’s licensors. The Client receives the right to use the software delivered by MicroSea after payment of the agreed fee exclusively for its own purposes and exclusively for the hardware specified in the service description and only to the extent of the purchased number of licenses for simultaneous use on several workstations. Any transfer of this right of use by the client to third parties, whether against payment or free of charge, is prohibited.

The distribution by the Client of objects subject to MicroSea’s copyright and the rights of MicroSea’s licensors (in particular software and programs) is excluded. The cooperation of the Client in the production of the software does not result in the Client acquiring any rights to the object of the contract. Any infringement of the contractor’s copyrights shall result in claims for damages, whereby in such a case full satisfaction must be provided.

7.2 The Client shall be permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.

7.3 Insofar as the disclosure of the interfaces is required for the creation of interoperability of the software supplied by MicroSea, the Client must commission MicroSea with this disclosure. MicroSea is entitled to remuneration at the valid remuneration rates.

8.1 If MicroSea exceeds the agreed delivery times, the client is entitled to set a grace period of at least three weeks and, in the event that the agreed service is not provided at least in its essential parts within the set grace period, to declare withdrawal from the contract.

8.2 Force majeure, labor disputes, natural disasters and transport blocks, as well as other circumstances beyond MicroSea’s control, release MicroSea from the delivery obligation until such time as these obstacles cease to exist.

8.3 Cancellations by the Client are only possible with the written consent of MicroSea. If MicroSea agrees to cancel the contract, MicroSea has the right to demand a cancellation fee in the amount of 30% of the part of the order not yet performed, in addition to the contractually owed remuneration for the services already provided.

9.1 Notices of defects are only valid if they are made in writing immediately, at the latest within 4 weeks after delivery and acceptance in accordance with point 2.4, with a precise description of the defects. In the case of justified notices of defects, the defects will be rectified by MicroSea within a reasonable period of time, insofar as they can be rectified. The client must provide MicroSea with the necessary support for the rectification of defects so that the rectification of defects can be carried out quickly and without hindrance. A right to a price reduction for remediable defects is excluded.

In the case of irremediable defects, insofar as these do not impair the function of the delivered software (insignificant defects), price reduction claims are also excluded.

9.2 Costs for the diagnosis and elimination of faults for which the client is responsible shall be paid separately by the client. This also applies to the elimination of defects if program changes, additions or other interventions have been made by the contractor itself or by a third party.

9.3 MicroSea assumes no warranty for errors, malfunctions or damages that are attributable to improper operation or improper storage, changed operating system components, interfaces and parameters, the use of unsuitable organizational means and data carriers, as well as transport damages.

9.4 Insofar as the Client subsequently modifies programs supplied by MicroSea or commissions third parties to modify these programs, any warranty shall lapse.

9.5 Insofar as the object of the order is the modification or supplementation of existing programs, the warranty refers exclusively to the modification or supplementation. The warranty for the original program shall not be revived as a result.

9.6 MicroSea warrants that the items delivered by it have the properties usually assumed for such items in business transactions. MicroSea only provides a warranty for additional properties of these items if these properties have been promised by MicroSea in writing.

9.7 MicroSea is not liable under the Product Liability Act for property damage suffered by an entrepreneur.

MicroSea is liable for damages insofar as these are based on intent or gross negligence. Proof that MicroSea has acted with intent or gross negligence must be provided by the client. Liability for slight negligence is excluded.

The contracting parties undertake to be loyal to each other. They shall refrain from any enticement (including via third parties) of employees of the other contracting party for the duration of the contract and 12 months after termination of the contract and full completion of the contractual activity. If a contractual partner breaches this obligation, a contractual penalty of € 20,000 shall be forfeited in favor of the other contractual partner, irrespective of proof of fault and the occurrence of actual damage, which is not subject to judicial mitigation. This shall not limit the assertion of further claims for damages.

The contractual partners are mutually obliged to keep the detailed circumstances of the respective contractual relationship secret and also to protect the business and/or trade secrets of the respective other contractual partner that come to their knowledge within the scope of the contractual relationship.

The Client undertakes to keep confidential all information which it receives from MicroSea in any form whatsoever within the scope of the business relationship, in particular all information about the contractual software, its source code, the online visualization, configuration and/or process mapping, ordering options via a network and/or its development, about other details of technical implementations, to use all information about other business matters of MicroSea, its affiliated companies, customers and suppliers and finally also information about this contract including any attachments and appendices and the contractual discussions and negotiations conducted about it exclusively for the purposes and within the framework of this contractual relationship, but otherwise to treat it as strictly confidential and to refrain from passing on any confidential information to third parties.

The client undertakes to take suitable precautions to prevent unauthorized persons from gaining knowledge of confidential information and to oblige persons who may be considered as recipients of confidential information, in particular employees and other persons whom he uses to fulfil this contract, to maintain confidentiality and to comply with the provisions of § 15 of the Data Protection Act and to ensure compliance with them.

In the event of a legally mandatory disclosure of information, the Client shall inform MicroSea immediately in order to enable MicroSea to take appropriate measures to maintain the greatest possible confidentiality.

Insofar as confidential information is contained in written documents and/or recorded or stored on another data carrier, copies may only be made for the purposes and within the scope of this contractual relationship. The Client expressly acknowledges that there is no right of retention of any kind to such documents, that these documents must be returned to MicroSea immediately and that it must be ensured that no copies and/or other documentation thereof are retained and that all electronically stored confidential information is deleted as soon as the contractual relationship ends or MicroSea requests the Client to do so in writing.

The obligations of this non-disclosure agreement shall also apply beyond the duration of the contractual relationship, unless the contracting parties expressly agree otherwise.

For each breach of this confidentiality agreement, the client is obliged to pay a contractual penalty of EUR 75,000.00, which is not subject to judicial mitigation and is independent of fault. In this case, MicroSea shall also be entitled to claim damages from the Client in excess of the contractual penalty.

Should individual provisions of contracts concluded between the contracting parties be or become invalid, this shall not affect the remaining content of these contracts. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.

Austrian law shall apply exclusively. The place of jurisdiction is Vienna.

MicroSea’s deliveries remain the property of MicroSea until payment of all claims, including those arising in the future, in particular the balance claim on current account to which MicroSea is entitled, regardless of the legal grounds. This also applies if payments are made on specially designated claims.

MicroSea must be informed immediately of any seizure or other claim by third parties to objects that are the property of MicroSea, and the Client must cooperate in every way in the enforcement of MicroSea’s property rights and provide the necessary support. Any resulting costs shall be borne by the client.

The Client is not entitled to resell items delivered by MicroSea to third parties without the express written consent of MicroSea.

Contracts, amendments and additions to contracts as well as all declarations by the contracting parties regarding the content of these contracts, amendments and additions are only effective if they are made in writing. The written form requirement also applies to any agreement to deviate from the written form requirement.

The General Terms and Conditions of MicroSea in the currently valid version are published digitally signed on the website www.microsea.at.