General Terms and Conditions
1. Scope and Applicability
The following conditions shall apply to all services provided by IKARUS Security Software GmbH (hereafter IKARUS) in fulfilling contractual agreements. Orders and agreements shall be legally binding only if placed in writing and duly signed by IKARUS. The purchasing conditions of the Customer with respect to the present legal transaction and the entire business relationship are hereby excluded. For transactions as defined by the Austrian Consumer Protection Act (Konsumentenschutzgesetz), the following provisions shall apply except where the Consumer Protection Act provides other mandatory terms.
2. Scope of Services
The scope and extent of services provided are governed by the respective offers. Support services not covered by the Maintenance Contract include: services required due to operating-system or hardware changes, or changes to interdependent software programs and interfaces that are not governed by the contract; the correction of errors that have been caused by the Customer or third parties and are not directly related to the antivirus measures; loss or damage caused directly or indirectly by any operating action or omission performed by the Customer or user; data conversion, data-set recovery, or interface customization; services necessary due to force majeure; and travel and accommodation expenses if the place of performance is more than 50 kilometers from the IKARUS site. The above services, which are not part of the proposal, may be agreed upon as part of supplementary agreements with IKARUS. Modifications and/or extensions to the scope of services shall be made in mutual agreement and must be set down in writing. Possible related additional expenses on the part of IKARUS must be ordered separately.
3. Obligations of the Contracting Parties
Responsibilities of IKARUS: IKARUS provides the supplies and services hereunder in accordance with the provisions of the respective concluded supply, license, maintenance, and/or project contract. Responsibilities of the Customer: The Customer ensures, at his own expense, that all prerequisites necessary for rendering the service, in particular, all necessary technical requirements, are met. The Customer makes all documents required for rendering the contractual services available to IKARUS. The Customer provides for free all hardware, communication devices, media, basic programs, etc. needed for contract performance to IKARUS for the entire performance period. The Customer provides to IKARUS access to the Customer premises as necessary for performing the agreed services and also supplies necessary means (for example, office space, phones, workstations). The Customer may not use trademarks, company labels, or other distinguishing features of IKARUS for marketing or publication purposes without the prior written consent by IKARUS. The Customer is obliged to indemnify IKARUS from all expenses, losses, and damages resulting from the infringement of existing rights of third parties due to making use of the agreed services. If the Customer is obliged to indemnify IKARUS from third-party claims in accordance with the statutory or contractual provisions, this includes without limitation compensation for direct and consequential damage, expenses for defense of claims, and, in general, expenses for asserting the respective legal rights including expenses of legal representation and of finding with the claimant an agreement advisable under commercial aspects. The Customer is obliged to support IKARUS in rendering their services. The Customer will therefore name an authorized and technically competent contact person who will be available to IKARUS in case of questions and preliminaries. The information provided by that person with respect to contract performance are binding for the Customer.
4. Delivery Dates
IKARUS shall endeavor to observe the agreed delivery dates to the best possible extent; however, fixed delivery dates must be agreed specifically. Target delivery dates can be met only if the Customer ensures completion of all works and provision of all documentation by the deadlines indicated by IKARUS and complies with his obligations to cooperate to the extent necessary. IKARUS shall not be responsible for delays in delivery and increases in costs caused by incorrect, incomplete, or subsequently changed details and information and/or documents made available or by failure to comply with the obligation to cooperate; such delays or increases shall not result in default on the part of IKARUS. Any extra costs resulting thereof shall be paid by the Customer. IKARUS shall get into default in delivery only by means of a written message. With orders comprising multiple units or programs, IKARUS has the right to carry out and to invoice partial deliveries. If IKARUS and/or its subcontractors cannot meet their obligations due to industrial action, environmental disasters, war, or other cases of force majeure, the agreed delivery periods shall be prolonged accordingly. Additional services provided due to cases of force majeure or exceeding the agreed scope will be charged separately.
5. Prices, Taxes, and Fees
All prices shall be in Euro exclusive of VAT/sales tax. Prices shall apply to the respective order only. All prices shall be considered ex IKARUS’ headquarters. All costs of visualization and communication exceeding a standard protocol as well as costs of media (e.g. DVDs, CD-ROMs, magnetic tapes, or streamer tapes) and possible contract fees will be invoiced separately. IKARUS shall invoice travel and subsistence expenses arising from providing contractual services directly at no extra charge. Within the City of Vienna, travel expenses are included; outside Vienna, a compensation of 100 EUR per visit will be invoiced. Additional charges will be raised for travel times. Training prices include the provision of instructors only; the Customer shall make the required infrastructure available. Possible equipment-transport expenses will be charged separately. A 50% surcharge will be added to the service charge for weekends or holidays. Any taxes, levies, or fees in conjunction with the conclusion or performance of a maintenance or project contract or with any changes thereto will be paid by the Customer.
6. Billing and Payment
Invoices issued by IKARUS inclusive of value added tax shall be payable without any deductions and free of charge within 14 days of receipt. The payment conditions agreed for the total amount shall apply to partial invoices accordingly. With orders comprising multiple units (e.g. programs and/or training units, execution in partial stages), IKARUS shall be entitled to render account after delivery of each single item or service. Compliance with the agreed date of payment is a basic condition for the rendering of services or fulfillment of a contract by IKARUS. If the Customer comes in default of payment, IKARUS has the right to demand interest payable on arrears at the legally stated rate (Austrian Civil Code [ABGB], section 1333) and reimbursement of the necessary costs for reminders and prosecution of claims in and out of court. Other claims for compensation remain unaffected. All services rendered by IKARUS remain IKARUS’ property until full payment. At any time, IKARUS is entitled to offset existing accounts receivable from services rendered to the Customer against possible accounts payable to him. Only claims that have been legally established or been acknowledged by IKARUS in writing may be offset against claims of IKARUS. The Customer shall not be entitled to withhold payments on the grounds of incomplete total delivery, guarantee claims or warranty claims, or complaints.
7. Copyright and Right of Use
IKARUS or its licensees shall be entitled to all rights to the agreed services. The Customer is granted a non-exclusive and non-transferable authorization to use the product for the period of validity of this contract or a separately agreed period. IKARUS ensures that the services ceded by IKARUS for use to the Customer do not compromise any rights of a third party. IKARUS holds harmless and indemnifies the Customer for and against all claims by third parties resulting from the infringement of third-party rights on the ceded services. The Customer indemnifies IKARUS and its officers, directors, employees, agents, contractors, or other suppliers from all liabilities with respect to the claims of third parties resulting from unauthorized supply of material by the Customer for the purpose of contract fulfillment.
At justified written complaint, all defects shall be eliminated free of charge within an appropriate time period. For that purpose, the Customer shall allow IKARUS to take all measures necessary for investigating and removing the defects. Warranty claims shall be satisfied mainly by means of replacement. IKARUS shall assume no warranty for errors/bugs, failures or damage caused by improper operation, incorrect installation, changed components of the operating system, interfaces and parameters, use of unsuitable organizational resources and media, to the extent they are prescribed, abnormal operating conditions (in particular, deviations from the installation and storage conditions) as well as by transportation damage. IKARUS shall assume no warranty for parameter changes subsequently made by the Customer or third parties. In case that alterations or supplements of antivirus measures that are already in use are part of the order, any warranty refers to those alterations or supplements. This will not reactivate the warranty for the original functionality of the antivirus measures. If despite written complaints and attempts to remedy the services provided to the Customer are not usable four weeks after the last attempt to remedy, the Customer shall be entitled to allow IKARUS an appropriate extra respite for ultimate rectification. If IKARUS does not remedy the indicated defects within the extra respite, the Customer shall be entitled to withdraw the defective part from the contract. A withdrawal from the contract due to minor defects shall, however, be ruled out. IKARUS only warrants that all antivirus measures, protective measures against worms, Trojan horses, etc. are free from defect and generally usable according to the current state of the art at the time of provision without meeting the requirements of all possible uses. IKARUS underlines that the current state of the art does not allow for implementing antivirus measures in a way that they function without errors in any and all applications and setups. This is particularly true for the area of virus protection considering the fact that new viruses are constantly emerging. The warranty is therefore primarily limited to a successful adaptation of implemented antivirus measures.
IKARUS is liable for object damages if intent or gross negligence on the part of IKARUS can be proven. No matter which legal basis, IKARUS shall not be liable for cases of slight negligence nor for collateral losses or subsequent losses, inappropriate operation or installation, expenses for substitute performance or object damages due to a defective product, unrealized profits/savings, losses of interest and damages from the claims of a third party against IKARUS even if IKARUS has been advised of the possibility of such damages. IKARUS is also liable for personal injury in cases of minor negligence. In any case, compensation is limited to a maximum amount of 30,000.00 EUR. The assertion of compensation claims against IKARUS requires that the Customer notifies IKARUS in writing at the time of, and no later than 14 days following, the discovery of the occurred damage. Compensation claims against IKARUS shall become statute-barred with expiry of one year from the time they arise. The Customer is responsible for performing adequate data backup and for implementing protective measures against unauthorized access also using means of telecommunication. IKARUS is not liable for loss of data and/or programs and for replacement of destroyed data.
10. Contract Duration/Cancellation
A contract concluded on the basis on these General Terms and Conditions shall become effective at the time of signing and shall be concluded for an indefinite period unless a specific period has been agreed. IKARUS as well as the Customer are entitled to terminate the contract for good cause without notice if the respective other party does not comply with its contractual obligations even after a reasonable period of grace. A termination for good cause due to minor contract violations is excluded. Noncompliance with the agreed payment deadlines according to section 6 of these General Terms and Conditions is in any case a good reason within the meaning of this provision. Both IKARUS and the Customer may terminate open-ended contracts at a 3-months notice period without giving a reason. If a fixed-term contract is concluded on the basis of these General Terms and Conditions, the contractual term will automatically extended by the agreed period if the contract has not been terminated in observance of the due notice before expiry.
11. Privacy, Confidentiality
It is in the Customer’s responsibility to ensure that appropriate technical and organizational measures are in place for protecting the Customer’s data in compliance with the effective data-protection laws. When handling personal data, IKARUS will observe those laws and design its own internal organization in a way that it satisfies the specific demands of privacy. Both IKARUS and the Customer are obliged to keep confidential the content of any contract materialized on the basis of these General Terms and Conditions and all trade and business secrets of the other party that get known to them in fulfilling such contract, use them for the agreed purpose only, and to take all measures necessary to protect them from unauthorized access and exploitation by third parties. Subcontractors of IKARUS shall not be deemed as third parties within the meaning of this provision. IKARUS staff processing Customer data shall be obliged to privacy compliance in accordance with section 15 of the Austrian Data-Protection Act (Datenschutzgesetz 2000).
12. Concluding Provisions
If IKARUS assigns subcontractors for assistance, these General Terms and Conditions shall apply to the subcontractor’s employees in the same extent. Claims from a contract concluded on the basis of these General Terms and Conditions become statute-barred within three years from the time they arise unless shorter periods of limitation are stipulated (as in section 9 of these General Terms and Conditions). Liability claims of consumers shall expire in accordance with the legal regulations. Liability to businesses is limited to one year. With the exception of the assignment of rights to a subcontractor by IKARUS, the assignment of rights from a contract concluded on the basis of these General Terms and Conditions shall be subject to the other contracting party’s prior express consent in writing. To become effective, all contractual agreements, alterations, and supplements and all annexes to this contract must be made in writing, reference the actual contract, and include the authorized signatures of both parties. If individual provisions of the contract or these General Terms and Conditions should be or become invalid, this will not affect the validity of the remaining provisions of the contract or these General Terms and Conditions. The contracting parties shall co-operate as partners in order to find a provision, which comes as close as possible to the ineffective provisions. Unless otherwise agreed, the legal provisions applicable between businesses or, if the Customer is a consumer, the more favorable provisions of the Austrian Consumer Protection Act, shall apply solely under Austrian law, with the exclusion of relegation norms, even in the case of execution of the order abroad. In case of consumers, the law of the country the citizen of which the consumer is may be necessarily applicable. The United Nations’ Conventions on Contracts for the International Sale of Goods (Uniform Sales Law) in their respective valid version shall not apply. Exclusive place of jurisdiction for disagreements in conjunction with a contract concluded on the basis of these General Terms and Conditions including the existence or non-existence of the contract and on the occasion of its termination is the respective competent court for trade matters in Vienna, Innere Stadt, and for consumers the respective general place of jurisdiction.
IKARUS Security Software GmbH
Vienna, in the year of 2015