§1 Scope
1.1. These general terms and conditions of the Parkside Interactive Group (Parkside Informationstechnologie GmbH and its affiliated companies), hereinafter referred to as Parkside, apply to all legal transactions, i.e. to all services that Parkside provides to the contractual partner. They also apply to future business and additional agreements, even if no express reference has been made to them.
1.2. All orders and agreements are only legally binding if they are signed by the contractor in writing and in accordance with the company and are only binding to the extent specified in the order confirmation.
1.3. The contractual partner's general terms and conditions of purchase are hereby excluded for the present legal transaction and the entire business relationship, even if Parkside does not expressly object to them upon receipt.
1.4. Offers are generally subject to change.
1.5. Amendments require express written confirmation by Parkside in order to be valid and apply only to the respective individual business case.
1.6. Together with the remaining contract documents (order documents, list of services, Master Service Agreement, Service Level Agreement, etc.) and the related attachments, these terms and conditions form the contract in its entirety. If there is a conflict between these documents, the respective individual agreement, the offer documents, then the service level agreement, then the master service agreement and then finally the AG applies. In each case, the version of the present conditions valid at the time of conclusion of the contract is decisive.
§2 Performance and testing
2.1. The services to be provided by Parkside may in particular be:
— Development of custom software
— Visual and technical update of legacy software
— Improving existing systems and platforms
— Global and detailed analyses in the area of UX/UI
— Digital product development
— Migration from on-premise solutions to web solutions
— Design and technology consulting
— Delivery of library (standard) programs
— Acquisition of usage rights for software products
— Acquisition of work use permits
— Participation in commissioning (conversion support)
— Telephone consultation
— Program maintenance
— Preparation of program carriers
— Other services
2.2. The services that Parkside provides are provided by Parkside carefully, in accordance with the state of the art and in accordance with the written instructions. The provisions of work contract law do not apply to the provision of services. The client himself is therefore responsible for the results he strives for and achieves. The use of Parkside's services for specific purposes is not agreed.
2.3. Parkside provides its services on the basis of the complete information, documents and tools to be provided by the client. This also includes, where necessary, practice-oriented test data and sufficient testing options. The service description must be checked by the client for accuracy and completeness. Requests for changes that occur later can result in dates and price changes.
2.4. If the client works productively with a system provided for testing and implementation purposes, the client is responsible for securing the data. Parkside is not responsible for any loss of data. Any documentation will be handed over to the client in electronic form.
2.5. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, Parkside is obliged to immediately notify the client of this. If the client does not change the service description to the effect or creates the condition that implementation is possible, Parkside may refuse to perform it. In this case, it is not necessary for Parkside's performance to meet specific requirements or to have certain functionalities. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change of the service description by the client, Parkside is entitled to withdraw from the order. The costs and expenses incurred up to then for Parkside's activities as well as any dismantling costs must be reimbursed by the client.
2.6. Unless expressly agreed otherwise, the training of the client and his employees for the services provided (programs, etc.) is not included in the price and will be invoiced separately.
2.7. Commitments about features are only binding if confirmed in writing by Parkside.
2.8. Insurance is only provided at the request of the client.
2.9. The client must also check the admissibility of content provided by him, in particular competition, trademark, copyright and administrative law. In the event that Parkside is claimed by third parties for such content, the client will hold Parkside completely harmless and indemnified.
2.10. Parkside is not liable to the client for the legal admissibility of content if it has been specified by the client.
2.11. Services: The basis for preparation is the written service description (specification) provided by the client or which is prepared by Parkside against cost calculation on the basis of the documents and information provided to it. The service description must be checked by the client for accuracy and completeness. Requests for changes that occur later can lead to changes in dates and prices. Unless otherwise agreed, the source code, including all rights to it that are not required for the use of the work, of programs created during work services remains with Parkside and is not released to the client.
2.12. Maintenance: The subject of the contract may also be the maintenance of programs and systems.
2.13. Unless otherwise agreed, the source code of the Parkside programs created, including all associated usage rights that are not required for use in accordance with the contract, remains with Parkside and is not released to the client.
2.14. The use of 3rd party components is permitted in principle; the consent of the client is in any case obtained in advance from the contractor. As part of the project documentation, a complete list of the 3rd-party components used is created. Any license costs for 3rd party components must be paid by the client.
2.15. We expressly point out that barrier-free design (of websites) within the meaning of the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act — BGStG) and the Federal Act on the Elimination of Discrimination of Persons with Disabilities (Disability Equality Act, BehiG) is not included in the offer, unless this was requested separately/ individually by the client. If the barrier-free arrangement has not been agreed, the client is responsible for checking the admissibility of the benefit with regard to the Federal Disability Equality Act or Disability Equality Act. The client must also check the admissibility of content provided by him, in particular competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilment of any warning obligation towards the customer, Parkside is not liable for the legal admissibility of content provided by the customer.
§3 Offers
3.1. The basis for creating individual programs is the written service description, which Parkside generally prepares for a fee against cost calculation on the basis of the documents and information provided to it or provided by the client. This service description must be checked by the client for accuracy and completeness and accompanied by his approval note. Requests for changes that occur later may result in separate appointment and price agreements.
3.2. If, as a result of this offer, no order is placed within the period of validity, Parkside is entitled to charge the costs of detailed specification and submission of an offer.
3.3. Individual organizational concepts and programs are developed in accordance with the type and scope of the binding information, documents and tools provided in full by the client. This also includes practice-oriented test data and sufficient testing options, which the client provides on time, during normal working hours and at his expense.
3.4. If the client is already working in real operation on the system provided for testing, the client is responsible for securing the real data.
3.5. When ordering library (standard) programs, the client confirms knowledge of the scope of services offered by the ordered programs.
3.6. Offers are generally subject to change.
§4 Content and optimization
4.1. With regard to mobile apps, mobile programs and web applications, the contractual partner agrees that, unless otherwise agreed, they will be developed and optimized to the latest version of the operating system versions publicly available at the time the contract is concluded.
4.2. Required and uncommissioned resources are provided by the client or commissioned separately. This includes not exclusively, but in particular: access data to existing hostings, databases or web services; localized texts and descriptions as well as localized graphics or logos.
§5 Amendments
5.1. Each of the contracting parties may apply in writing to the other contractual partner for changes to the scope of services agreed in the offer or contract. After receiving an amendment request, the recipient will check whether and under what conditions the change is feasible and immediately notify the applicant of the approval or rejection. If an amendment requested by the client requires extensive review, Parkside will invoice the resulting expenses separately. The contractual adjustments required for a change are regulated by a separate agreement.
5.2. Parkside may unilaterally amend its services to be provided in accordance with the agreement, provided that the change entails no or only minor disadvantages for the client. Parkside will inform the client of this.
§6 Subcontracting and Artificial Intelligence
Parkside may use subcontractors, in particular to affiliated companies, to provide services without the consent of the client. In this case, Parkside remains responsible for the services provided. In particular, this includes Parkside's right to either have individual parts of the order carried out by employees of the subcontractor or to carry them out themselves.
Parkside is also entitled to use artificial intelligence or comparable software to perform such tasks.
§7 Delivery date, delivery periods, place of service provision
7.1. Parkside strives to meet the agreed deadlines for fulfillment (completion) as precisely as possible.
7.2. Additional services or changes to an existing order always require written form and a separate order confirmation from Parkside. The customer expressly agrees to an extended project duration in the event of changes.
7.3. Agreed delivery periods/fulfillment dates are always approximate and non-binding.
7.4. The desired performance dates can only be met if the client provides all necessary work and documents in full, in particular the service description accepted by him in accordance with point 2.3, on the dates specified by Parkside and complies with his obligation to cooperate to the required extent.
7.5. Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed information and information or documents not provided completely or not on time are not attributable to Parkside and cannot result in a delay on the part of Parkside. The client bears the resulting additional costs and other disadvantages, in particular due to delays.
7.6. For orders that include several units or programs, Parkside is entitled to make partial deliveries or issue partial invoices.
7.7. Unless otherwise agreed, Parkside provides its services at Parkside's headquarters, affiliated companies, subcontractors, or remotely.
7.8. The client agrees to accept that the mutually planned end date will be exceeded by 25% of the project duration. This will be immediately notified to the contractual partner as soon as and if apparent. As a result, the contractual partner does not incur any additional costs
§8 Prices, taxes and fees
8.1. Unless otherwise agreed in the offer, all prices are in euros excluding sales tax. They only apply to the present order.
8.2. The prices listed are from Parkside's registered office. Unless otherwise agreed, remuneration is based on expenses.
8.3. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (consulting, programming, training, conversion support, etc.), the workload is charged at the rates valid on the day the service is provided.
8.4. If there are deviations from the time spent on which the contract is based, for which Parkside is not responsible, the additional expenditure will be calculated according to the actual cost of the contract.
8.5. The costs of travel, daily and overnight allowances will be charged to the client separately in accordance with the applicable rates. Travel time is considered working time. Costs for accommodation, food and other travel expenses are shown separately and are not part of the costs of travel time. Unless otherwise agreed, this also applies to an agreed package price.
8.6. Evaluation and preparation of offers will be invoiced to the contractual partner based on actual expenditure.
§9 Payment
9.1. The invoices submitted by Parkside, including sales tax, are payable promptly without deductions and free of charges upon receipt of the invoice. For partial invoices, the payment terms defined for the entire order apply analogously.
9.2. In the case of orders that include several units (e.g. programs and/or training, implementation in stages), Parkside is entitled to invoice each individual unit or service after delivery, for which the payment terms specified for the entire order also apply.
9.3. A payment is considered to have been made on the day it is received in the account announced by Parkside.
9.4. Compliance with the agreed payment dates is an essential condition for Parkside to carry out the delivery or performance of the contract. Failure to comply with the agreed payments entitles Parkside to suspend ongoing work for the time being and to withdraw from the contract with a grace period of at least 3 days. If payment is not made even within the time limit, Parkside's withdrawal from the contract becomes effective without the need for further contract declarations from Parkside. All associated costs and loss of profit are to be borne by the client.
9.5. In the event of late payment, default interest of 9.2% above the base interest rate will be charged. In the event of failure to comply with two installments for partial payments, Parkside is entitled to allow lost appointments to take effect and to make accepted payments due.
9.6. The client is not entitled to withhold payments due to incomplete total delivery, warranty or warranty claims or complaints.
9.7. If the contractual partner is in default with an agreed payment or other service arising from this or other transactions, Parkside may, without prejudice to its other rights
(a) defer performance of his own obligation until this payment or other performance has been effected and claim a reasonable extension of the performance period, (b) make due all outstanding claims arising from this and/or other transactions and charge default interest of 9.2% above the base interest rate for these amounts from the respective due date and claim any damage caused by the late payment regardless of this.
In any case, Parkside is entitled to charge pre-litigation costs, in particular reminder fees and attorney fees.
9.8. Payment delays entitle Parkside to increase the planned lead time of the project by twice the duration of the delay without the need for a separate agreement.
9.9. The presumption of defectiveness (in accordance with Section 924 ABGB), if applicable, is excluded.
9.10. Electronic invoicing
Parkside is also entitled to send invoices to the contractual partner in electronic form and the contractual partner expressly agrees to this method of delivery.
§10 Project Management
10.1. All projects are handled agilely by Parkside.
10.2. In agile project management, the contract partner is cooperatively involved in the planning phase and iterative development. Agile project management in accordance with Parkside's guidelines is therefore considered the subject of every collaboration.
10.3. The project is carried out iteratively, in cycles of two to four weeks.
§11 Involvement of the client
11.1. The success of the services to be provided by Parkside depends on the cooperation of the client. The client therefore creates all conditions within its sphere of competence that are necessary for the proper provision of services. Where necessary, the client will in particular:
— at the beginning of the assignment, name all contact persons and those employees who support Parkside employees in providing services and ensure their cooperation;
— in the case of services to be provided by Parkside, appoint a system manager and a representative authorized to make decisions on the part of the client;
— provide all information necessary to fulfill the order in good time and update it regularly;
— guarantee immediate decision-making during or after the cyclical review meetings;
— report any apparent defects and faults immediately;
— take all measures, as far as is reasonable, to identify deficiencies and faults and their causes and to facilitate and support their elimination;
— provide access to the client's equipment and systems and make it possible to access the required servers;
— assist Parkside in preparing and holding the necessary meetings and ensure the participation of relevant employees;
— provide Parkside employees with the necessary rooms and workplaces for tasks that are carried out on site at the client's site.
If obligations to cooperate are not fulfilled or only partially fulfilled, this may lead to delays and cost increases for which the client is responsible.
§12 Project acceptance
12.1. Parkside's performance is considered complete when Parkside has performed and delivered all activities defined in writing with the contractual partner to fulfill the order without defects.
12.2. Individually created software or program adaptations require program acceptance for the respective affected program package no later than 10 working days from delivery by the client. If the client allows the period of 10 working days to elapse without program acceptance, the delivered software is considered accepted as of the end date of the specified period. If the software is used in real operation by the client, the software is considered accepted in any case.
12.3. Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported by the client in sufficient documentation in writing to Parkside, which will endeavour to remedy the defects as quickly as possible. If, after 10 working days after delivery, Parkside has not received a signed list of defects, the delivery or order is considered fulfilled and accepted. If there are significant deficiencies reported in writing, i.e. that actual operation cannot be started or continued, a new acceptance is required after the defect has been rectified.
12.4. The client is not entitled to refuse to accept software due to minor defects.
§13 Copyright and use
13.1. Parkside grants the client permission to use the work results that is unlimited in space, location and time. The client may expand, transfer, revise, adapt, change, reproduce or publish all work results without the consent of Parkside and/or transfer them to third parties for use or exploitation. In particular, for the individual software created as part of an offer or contract, Parkside grants the client an unlimited, transferable and sub-licensable permission to use the work.
13.2. The permission to use the created software will only be transferred at the time of full payment of all services provided by Parkside. Parkside revocably tolerates the use of the software by the client until full payment has been made. Parkside can use such
Software whose payment is — even partially — delayed by the client is revoked for the duration of the delay.
13.3. Parkside can be named as the originator of the service.
13.4. The client is entitled to transfer the above rights in whole or in part to third parties without further consent from Parkside or to separate simple rights from them and grant them to third parties. All property rights to work results that form part of the contract and were not created as part of the performance of the contract (pre-existing work results) remain with Parkside.
13.5. The cooperation of the client in the production of the software does not acquire any rights over the use specified in the present contract.
13.6. Any infringement of Parkside's copyrights will result in claims for damages, in which case full satisfaction must be provided.
13.7. The client is permitted to make copies for archiving and data backup purposes, provided that the software does not contain an express prohibition on the part of the licensor or third parties, and that all copyright and ownership notices are transferred unchanged into these copies.
13.8. If the client is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use is governed by the license terms of the license holder (manufacturer).
§14 Source code
Unless otherwise agreed, the source code of the Parkside programs created, including all associated usage rights that are not required for use in accordance with the contract, remains with Parkside and is not released to the client.
It is stated that Parkside, in order to work particularly efficiently and cost-effectively for the customer, also uses software that is available as open source software and whose source code may be further developed by Parkside. Notwithstanding the scope of the rights granted to the customer to the software developed by Parkside, Parkside is entitled to return the further developed source code of OpenSource Software to the location from which it obtained Parkside and to grant Parkside the same rights to the source code that Parkside was granted to the original source code.
§15 Right of Withdrawal
15.1. In the event that an agreed delivery time is exceeded due to Parkside's sole fault or illegal action, the client is entitled to set a reasonable period of grace of at least 6 weeks by registered letter and to withdraw from the relevant order, if Parkside fails to provide the agreed service in significant parts even within the grace period and the client is not at fault for it.
15.2. Parkside strives to meet the agreed deadlines for performance as precisely as possible. If circumstances are unforeseeable or independent of the party's will, such as all cases of force majeure, labor disputes, natural disasters and transport blockages as well as other circumstances beyond Parkside's control, occur which impede compliance with the agreed deadline for delivery or provision of services, this shall in any case be extended by the duration of these circumstances. If it is foreseeable that these circumstances will not disappear within the foreseeable future, Parkside will be released from the delivery obligation or can optionally rearrange the agreed delivery time. These circumstances entitle the deadline to be extended even if they occur with subcontractors.
15.3. Cancellations by the client are only possible with written consent from Parkside. If Parkside agrees to a cancellation, it has the right, in addition to the services provided and costs accrued, to charge a cancellation fee of at least 30% of the order value of the entire project that has not yet been settled. However, Parkside is free to charge a higher cancellation fee depending on the individual circumstances of the order.
15.4. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is legally or actually impossible or economically unreasonable, Parkside is obliged to immediately notify the client of this. If the client does not change the service description to the effect or does the client not create the condition that implementation is possible or reasonable, Parkside may refuse to carry it out. Parkside shall be reimbursed by the client for the costs and expenses incurred up to that point, as well as any dismantling costs.
§16 Warranty, maintenance, changes
16.1. Parkside guarantees that the software performs the functions described in the accompanying documentation, provided that the software is used on the operating system described in the contract.
16.2. Parkside does not guarantee that the program is completely error-free and will run uninterrupted, but if a defect occurs within the warranty period that does not only insignificantly affect the use of the program, it will, at its option, correct the defect.
16.3. Complaints must be submitted in writing or by email, specifying the exact nature of the defect.
16.4. In case of warranty, improvement always takes priority over price reduction or conversion.
16.5. If the complaint is justified, the defects will be remedied within a reasonable period of time, with the client allowing Parkside to take all necessary measures to investigate and rectify the defect. Furthermore, Parkside assumes no liability for errors, faults or damage that are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational equipment and data carriers, insofar as such are required, abnormal operating conditions (in particular deviations from installation and storage conditions) and transport damage.
16.6. For a warranty claim for services or functions provided through a service in the sense of agile software development, defects can only be claimed with regard to specifications set out in writing and their acceptance criteria. In addition, in order to correct an error, the client must sufficiently describe the fault in an error message and make this identifiable for Parkside and provide Parkside with all documents required to correct the fault. Another prerequisite for troubleshooting is that the client or a third party attributable to him has not made any interventions in the software and has not changed, edited, developed or connected it with other programs. For programs that are subsequently modified by the client's own programmers or third parties, there is no warranty by Parkside.
16.7. In order to assert a warranty claim for services or functions provided through a service in the sense of agile software development, the contractual partner must prove defects during the limited warranty period.
16.8. Parkside is only obliged to correct a defect if it has arisen as a result of the following reasons:
— when implemented functionalities contradict the defined requirements, in particular the acceptance criteria of the respective product backlog item.
— when functionalities of defined requirements, in particular acceptance criteria of the respective product backlog item, are completely or partially missing
— when defined requirements have not been fully implemented.
— in the event of a programming error caused by incorrect or improper use of software development concepts or programming methods.
16.9. Costs for assistance, misdiagnosis and troubleshooting for which the client is responsible, as well as other corrections, changes and additions, will be carried out by Parkside against payment. This also applies to the correction of deficiencies if program changes, additions or other interventions have been made by the client himself or by a third party.
16.10. Insofar as the object of the order is to change or supplement existing programs, the warranty relates to the change or addition. This does not revive the warranty for the original program. This warranty does not apply to software and services (trial versions, etc.) that were provided free of charge.
If there is no warranty claim for defects reported by the client, the client shall bear the costs of troubleshooting and, if necessary, troubleshooting.
16.11. If services such as consulting and support services are provided within the framework of the contractual relationship, the client is responsible for the results achieved; there is no claim to warranty.
16.12. Warranty claims expire six (6) months from delivery. This also applies to defects that were not apparent at the time of delivery.
16.13. For programs that are subsequently modified by the client's own programmers or third parties, there is no warranty by Parkside.
§17 Liability
17.1. Parkside is liable to the client for demonstrably caused damage only in the event of gross fault. This also applies mutatis mutandis to damage caused by third parties brought in by Parkside. Liability for slight negligence is excluded, with the exception of personal injury. Parkside has unlimited liability in the event of personal injury caused by fault. Liability for indirect damage — such as lost profit, costs associated with a business interruption, loss of data or claims by third parties — is expressly excluded.
17.2. In each case, the client must prove that the damage is due to Parkside's fault.
17.3. Parkside's liability and indemnification in connection with the client's order or an agreement is limited in any case to EUR 500,000, with the order value and irrespective of this, except in the case of intent or personal injury, unless otherwise expressly agreed.
17.4. Claims for damages expire within one year from knowledge of the damage and the person causing the damage and in any case 3 years after the damage has occurred.
17.5. If Parkside performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, Parkside assigns these claims to the client. In this case, the client will give priority to these third parties.
17.6. Contrary to point 2.4, if data backup is expressly agreed as a service, liability for loss of data is not excluded, but limited to a maximum of EUR 10% of the order amount per claim, but a maximum of EUR 15,000 per claim. Warranty and compensation claims made by the client beyond those set out in this contract, regardless of the legal basis, are excluded.
17.7. For system components from third parties used as part of the project, the client himself assumes liability vis-à-vis the third-party manufacturers for any infringements of intellectual property rights resulting from their use.
§18 Use of ASP and data center services and online services by the client
The client is responsible for entering and maintaining the data and information required to use the ASP and DC services and online services. The client remains “master of the data” and is therefore responsible for compliance with data protection regulations. The client is obliged to comply with all applicable legislation when using it. It is prohibited to post or transmit information and data that violate legislation or common decency, which infringe on or violate third-party industrial property and copyright rights or other rights of third parties. Parkside is entitled to block access to information or data if parts of it are illegal or if there is suspicion of this, justified by objective evidence.
§19 Loyalty
The contract partners commit themselves to mutual loyalty. You will refrain from recruiting and employing, including through third parties, of employees who have worked on the execution of the orders from the other contractual partner for the duration of the contract and 12 months after termination of the contract. The contractual partner violating this is obliged to pay lump sum compensation in the amount of the employee's gross annual salary without the need to prove that the damage actually occurred. Parkside is also entitled to claim damage in addition to this contractual penalty.
§20 References
When participating in public tenders, on its website and in its publications, Parkside is entitled to refer to the client's business relationship with the client and to the related key data of ongoing and completed projects and contracts (“references”) of the client.
When developing mobile applications for the client, Parkside is entitled to place the lettering “Developed by Parkside Interactive, www.parkside-interactive.com” including contact details in the app.
§21 Confidentiality
Parkside requires its employees to comply with applicable data protection laws.
§22 Miscellaneous
Should individual provisions of this contract be or become ineffective, this shall not affect the remaining content of this contract. The contracting parties will work together in partnership to find a regulation that comes as close as possible to the ineffective provisions.
§23 Final provisions
23.1. Unless otherwise agreed, the legal provisions applicable between entrepreneurs apply
Provisions exclusively in accordance with Austrian/Swiss law, with the exception of referral standards, even if the order is carried out abroad. The applicability of UN sales law is excluded.
23.2. For any disputes, only the territorial jurisdiction of the competent court for the registered office of Parkside in Graz, Austria is considered agreed. If there are several courts in question, the respective plaintiff has the choice of which court to file the action.
23.3. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions apply only insofar as the Consumer Protection Act — insofar as it is applicable — does not necessarily provide for other provisions. The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and commit themselves to immediately notify each other of any changes.
23.4. Amendments to the contract and these general terms and conditions must be made in writing; it is expressly stated that only conditions agreed in writing and agreements and assurances made in writing apply and are legally valid. Any oral agreements that deviate from or contradict the written agreements are void unless they have been expressly confirmed in writing; any departure from this formal requirement must also be made in writing.
