Terms and Conditions
1 General
1.1 Scope of application
1.1.1 All contracts concluded with Boom Strategy GmbH, Heiligenstädterstraße 31/2/402, A-1190 Wien/Vienna, as contractor (hereinafter referred to as “CO”) shall be based exclusively on these General Terms and Conditions – (hereinafter referred to as “GTC”), which form an integral part of every contract concluded by the contractor.
1.1.2 This shall apply irrespective of any references by the client (hereinafter referred to as “CL”) to its own general terms and conditions of any kind whatsoever, in particular terms and conditions of purchase that conflict with these GTC, which shall have no legal effect whatsoever, regardless of whether, when and in what form these were brought to the CO’s attention. Agreements deviating from individual points of these Terms and Conditions shall only be effective for these and require the prior, express and written confirmation of the CO in order to be valid.
1.1.3 Silence regarding the CL’s terms and conditions of business or purchase shall in no way be deemed to constitute consent to the validity of these terms and conditions of business or purchase of the CL.
1.1.4 These GTC apply exclusively to contractual relationships between companies and are not directed at consumers.
1.1.5 These GTC shall apply to deliveries of all components of a contract between the CO and the CL (hardware, software components) in the form of purchase, rental or leasing and IT work/services to the CO (hereinafter referred to as “Service(s)”), such as, in particular, programming services, implementation, customization, IT consulting, maintenance or training.
1.1.6 These GTC shall apply to all current and future contractual relationships between the CO and the CL until the CO notifies the CL of amended GTC. If the CL does not object to the amended GTC in writing and with reasons within two weeks of notification, the amended GTC shall be deemed accepted.
1.2 Passing on the order, working groups
1.2.1 The CO shall be entitled to use subCOs to fulfill the order in whole or in part at its discretion.
1.2.2 If the contract is awarded to a bidding consortium or joint venture, its individual members shall only be liable to the CL for the contractual services performed by them; in particular, the individual members shall not be jointly and severally liable for the entire performance of the contract.
1.2.3 If the CO procures the services of third parties at the request of the CL, these contracts shall be concluded exclusively between the CL and the third party in accordance with the respective terms and conditions of the third party. The CO shall only be responsible for the services it provides itself.
1.3 Accessibility, Notice of Changes
1.3.1 These General Terms and Conditions will be made known before the start of the service by being available in the contractor’s customer service centers or by being available for the customer to access on the Internet at www.boom-strategy.com.
1.3.2 Upon conclusion of the contract and in the event of changes to these General Terms and Conditions, the Contractor shall, at his request, hand over or send a copy to the Customer free of charge for the service that concerns him.
1.3.3 Changes to these General Terms and Conditions will take effect no earlier than 2 weeks after they have been announced on the Internet at www.boom-strategy.com or after announcement in another suitable form by the Contractor. If the client is exclusively benefited by a change, the relevant regulations can be applied by the contractor as soon as the change is announced.
2. Conclusion of the contract
2.1 Offers, cost estimates
2.1.1 Unless otherwise agreed, all offers of the CO are subject to change and non-binding and do not oblige the CO to perform. We expressly reserve the right to make technical and other changes.
2.1.2 Similarly, the information contained in catalogs, brochures, advertisements, price lists, etc. regarding the services offered by the CO shall not be binding; only the information expressly confirmed by the CO in the order confirmation or the specifications according to the contract shall be authoritative.
2.1.3 All cost estimates prepared by the CO are non-binding and subject to a fee, unless otherwise agreed. The amount of the fee shall be determined in accordance with the CO’s valid rates.
2.2 Order
2.2.1 By placing an order, the CL makes a binding contractual offer.
2.2.2 The CO shall be entitled to accept the contractual offer contained in the order within two weeks or to refuse to accept the order for important technical, economic or operational reasons. Furthermore, the CO may obtain or request the necessary documents and certificates to prove the identity and creditworthiness of the CL; the CO shall not be obliged to accept an order if the CL is in default with payment obligations from previous orders, if the CL has breached obligations under these GTC or if there are equivalent reasons for refusal. The CO shall inform the CL of the reason for rejection.
2.3 Formation of the contract
2.3.1 The contract shall be concluded as soon as the order placed by the CL in writing or verbally has been accepted by the CO in writing, by e-mail or the CO has actually complied with the order by starting the implementation. The date of conclusion of the contract shall be the date of dispatch of the declaration of acceptance or, in the case of actual compliance, the date of dispatch of the service.
2.3.2 The content of the contract shall be determined exclusively by the information in the order confirmation or in the contract and not by the information in the order.
2.3.3 The contract shall be concluded subject to the proviso that in the event of incorrect or improper delivery to the CO by its supplier, the CO shall not be obliged to perform or shall only be obliged to perform in part. In the event of non-availability or only partial availability of the service, the CO shall inform the CL immediately and reimburse any consideration already provided.
2.3.4 Any approvals required from authorities or third parties for the execution of the order shall be obtained by the CL. The CL undertakes to inform the CO immediately in this respect and to indemnify and hold it harmless. The CO shall not be obliged to commence execution of the order before the necessary approvals have been granted with legal effect.
2.3.5 The reasonable expenses for drafts, sketches, samples, etc. produced at the request of the CL shall be reimbursed to the CO at its request even if the contract with the CL is not concluded, unless otherwise agreed.
2.3.6 The CO shall be entitled to revoke the declaration of acceptance by analogous application of the grounds for refusal under point 2.2, as long as the revocation was sent before receipt of the order confirmation.
3. Scope and provision of services
3.1 General
3.1.1 Unless otherwise agreed, the CO shall perform the contractual services in a manner customary in the industry (e.g. online, on site or at the CL’s business premises) within the CO’s normal working hours. If, at the CL’s request or due to special circumstances that make this necessary, services are provided outside normal working hours, the additional costs shall be invoiced separately (see Section 3.1.5). The CO shall be responsible for selecting the persons to provide the contractual services and shall be entitled to use third parties for this purpose (see Section 1.2).
3.1.2 The exact scope of the services to be provided by the CO shall be specified in the respective contract with the CL or in the order confirmation.
3.1.3 The CO shall be entitled to change the equipment used to provide the services at its own discretion if no impairment of the services is to be expected as a result.
3.1.4 The basis of the equipment and technologies used by the CO for the provision of services shall be the qualitative and quantitative service requirements of the CL as determined on the basis of the information provided by the CL. If new requirements of the CL necessitate a change in the services or the technology used, the CO shall submit a corresponding new offer at the request of the CL.
3.1.5 Services of the CO which are used by the CL beyond the agreed scope of services shall be remunerated by the CL according to the actual personnel and material costs at the rates applicable at the CO. This includes, in particular, services outside the CO’s normal business hours, the analysis and elimination of faults and errors caused by improper handling or operation by the CL or other circumstances for which the CO is not responsible.
3.1.6 Unless otherwise agreed, the CO shall neither be obliged to hand over a user project manual or other documentation (e.g. in the case of delivery of software or hardware), nor to hold training courses. If training courses are ordered by the Customer for a separate fee, these may also be held at the CO’s discretion on premises to be determined by the CO. Any additional training courses and any desired updates, modifications, extensions or ongoing maintenance etc. shall also be agreed separately in each case and shall be remunerated at the CO’s applicable rates.
3.1.7 The CO shall not be liable for quality defects of delivered products with regard to the place of use chosen by the CL or the technical conditions that the CL has created for the use. It is the sole responsibility of the CL to create the spatial and technical conditions for the use of the services provided by the CO.
3.1.8 Consultancy services provided by the CO for the creation of the customer’s technical/spatial prerequisites for the use of delivered products shall be invoiced separately, even if they are not included in the offer. By utilising such consulting services, the Customer issues a consulting order.
3.1.9 The CO shall not be obliged to check the content or logical content of data of the CL or third parties which the CL hands over to it for processing, storage or transport. If the CO suffers damage or additional expense as a result of the fact that the data provided to it by the CL contains illegal content or is not in a condition that makes it suitable for the provision of the commissioned service, the CL shall be liable for this.
3.1.10 The CO shall not be liable for damages arising from the fact that third parties whose data it has taken over for processing, storage or forwarding or other persons with whom it has no contractual relationship act improperly, provided that it could not and did not have to prevent this misuse within the framework of the state of the art and the standards customary in the industry.
3.1.11 Service, assembly and repair orders shall be deemed to have been placed to the extent necessary for maintenance or proper operation, even if the need for individual work or replacement of parts only arises in the course of execution.
3.1.12 Partial deliveries and advance deliveries are expressly permitted.
3.2 Performance deadlines, deadlines, delay
3.2.1 The agreed performance periods and deadlines are non-binding, unless otherwise agreed. They shall commence upon conclusion of the contract – but if this is dependent on official authorisation, upon its granting. The agreement of a binding delivery date does not make the contract a firm deal.
3.2.2 If a non-binding performance deadline is exceeded by more than eight weeks or a binding performance deadline by more than six weeks due to the sole fault of the CO, the CL may set the CO a reasonable grace period of at least three weeks in writing and, if this grace period expires without result, also withdraw from the contract in writing.
3.2.3 In the event of a temporary and unforeseeable impediment to performance for which the CO is not responsible, the agreed deadline shall be extended and the agreed date postponed by the period of time during which this impediment persists. Such an obstacle to performance exists in particular in the event of official measures, industrial action, failure of means of transport or energy, unforeseeable failure of deliveries by upstream service providers (all this also in companies which the CO uses to fulfil this contract), as well as in the event of force majeure. If the original performance date has already been exceeded by eight weeks in such a case, both contracting parties shall be entitled to withdraw from the contract; claims for damages by the CL in this respect shall be excluded.
3.2.4 If the service cannot be provided for reasons for which the CL is responsible, the CO shall be entitled to withdraw from the contract if the CL does not comply with a reasonable grace period set by the CO, which must be two weeks. In this case, the CL shall reimburse the CO for the expenses for work already carried out and for the reversal of services already rendered as a result of the cancellation of the contract. If it is impossible or impracticable to return the services already rendered by the CO, the CL shall compensate the CO for their market value. Furthermore, the CL must pay the CO 20% of the order amount in the form of a payment on account as compensation for the cancellation. The CO shall be at liberty to assert any further claims for damages.
3.2.5 If a service has already been provided and the CO cancels the contract due to a delay in payment by the CL after setting a reasonable grace period, which must be at least two weeks, the CL shall pay a penalty of at least [20%] of the purchase price as minimum compensation in addition to the expenses mentioned in point 3.2.4. The CO shall be at liberty to claim further damages.
3.3 Cooperation obligations of the client
3.3.1 The CL undertakes to take all measures necessary for the provision of the services by the CO. Furthermore, the CL undertakes to take all measures that are necessary for the fulfilment of the contract and that are not included in the CO’s scope of services.
3.3.2 If the services are provided on site at the CL’s premises, the CL shall provide the connections, supply current including peak voltage equalisation, emergency power supplies, storage space for equipment, workstations and infrastructure to the extent and quality required (e.g. air conditioning) for the provision of the services by the CO free of charge. In any case, the Principal shall be responsible for compliance with the prerequisites required by the respective manufacturer for the operation of the hardware. The Principal shall also be responsible for room and building security, including protection against water, fire and unauthorised access. The CL is responsible for special security precautions (e.g. security cells) on its premises. The CL shall not be authorised to issue instructions of any kind to the CO’s employees and shall submit all requests regarding the provision of services exclusively to the contact persons designated by the CO.
3.3.3 The CL shall provide all information, data and documents required by the CO to fulfil the order in the form requested by the CO on the agreed dates and at its own expense and shall support the CO on request in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the CL’s work processes that may cause changes in the services to be provided by the CO for the CL shall require prior consultation with the CO with regard to their technical and commercial effects.
3.3.4 The CL shall be obliged to treat the passwords required to use the CO’s services as confidential. If unauthorised third parties are suspected of having knowledge of these passwords, the CL shall change the passwords immediately or – if this can only be done by the CO – instruct the CO in writing to change the passwords immediately. If the CO’s services are used by unauthorised third parties using passwords, the CL shall be liable for all charges incurred as a result until the order to change the passwords is received by the CO. The CL shall be liable for any damage caused by inadequate confidentiality on the part of the CL or by disclosure by the CL to third parties.
3.3.5 The CL shall also keep the data and information handed over to the CO on its premises so that it can be retrieved if it is lost.
3.3.6 The CL shall fulfil all its obligations to cooperate in such a timely manner that the CO is not hindered in the provision of the services. The CL shall ensure that the CO and/or the third parties commissioned by the CO have the necessary access to the CL’s premises for the provision of the services. The Customer shall be responsible for ensuring that the employees involved in the fulfilment of the contract, companies affiliated with the Customer or third parties commissioned by the Customer cooperate accordingly in the fulfilment of the contract.
3.3.7 If the CL does not fulfil its obligations to cooperate on the agreed dates or to the agreed extent, the services provided by the CO shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. Schedules for the services still to be provided by the CO shall be postponed to a reasonable extent. The CL shall remunerate the additional expenses and/or costs incurred by the CO as a result separately at the CO’s applicable rates.
3.3.8 The Customer shall ensure that its employees and any third parties attributable to it handle the equipment and technology used by the CO and any assets provided to it with care; the Customer shall be liable to the CO for any resulting damage.
3.3.9 Unless otherwise agreed, the provision of materials and co-operation by the CL shall be free of charge.
3.4 Transfer of risk, acceptance obligation and default of acceptance
3.4.1 The CL shall immediately accept the services of the CO in accordance with the checklists provided by the CO for its support as soon as Boom Strategy GmbH notifies readiness for acceptance. The services of the CO shall be deemed to have been accepted if the CO has notified readiness for acceptance with reference to the significance of the omission of the declaration of acceptance and the CL does not thereupon declare acceptance within a period of time that allows it to recognise significant defects during the required careful examination, but at the latest after 14 working days, or refuses acceptance, stating defects to be detailed to the best of its ability. If readiness for acceptance is not notified, the time at which the Principal should reasonably have taken note of the services shall apply instead of the time of notification.
3.4.2 Unless otherwise agreed, the Customer shall bear the price risk from the time the goods are made available for collection or handed over to a carrier.
3.4.3 Unless otherwise agreed, the Customer shall immediately accept the (partial) services properly rendered by the CO. For the duration of the Customer’s default of acceptance, the CO shall be entitled to store the delivery items at the Customer’s risk and expense. The CO may also use a forwarding agent or a warehouse keeper for this purpose.
3.4.4 For the duration of the delay in acceptance, the Customer shall pay the CO a flat rate of 1% of the purchase price per month as compensation for the corresponding storage costs without further proof. In addition, the CO shall be entitled to demand higher storage costs incurred. If the Customer refuses to accept the delivery items or declares that it does not wish to accept the goods after the expiry of a reasonable grace period granted to it, the CO may withdraw from the contract and demand compensation for non-fulfilment. The CO shall be entitled to demand a lump-sum penalty of 20% of the agreed purchase price as compensation for damages, which shall not be subject to the judicial right of moderation pursuant to § 1336 ABGB; the CO shall be at liberty to assert claims for damages in excess thereof.
3.5 Changes to the scope of services
3.5.1 Both contracting parties may request changes to the scope of services at any time. However, any desired change must include a precise description of the change, the reasons for the need for the change, the impact on the schedule and the costs in order to give the other party the opportunity to make an appropriate assessment. A change to the scope of services shall only become binding upon the legally valid signature of both contracting parties.
4. Intellectual property rights, competition, employees
4.1 General
4.1.1 Unless otherwise agreed, the CO or its licensors shall be entitled to all rights to the agreed services derived from patent, trademark, design protection, semiconductor protection or copyright law or otherwise from the creation of the services made available to the CL.
4.1.2 The Customer shall only receive the non-exclusive and non-transferable right to use these services after full payment of the agreed fee in compliance with the contractual specifications at the agreed installation site for the contractual purpose to the extent of the number of licences purchased.
4.1.3 Unless otherwise agreed separately, the present contract shall only acquire a licence to use the work. Through the co-operation of the CL in the production or user-specific adaptation of the software, the CL shall not acquire any rights beyond the use specified in the present contract. The CO shall grant the CL rights of use to software and databases only to the extent necessary for the fulfilment of the specific contractual relationship. If the subject matter of the contract is the creation and/or use of databases, the Customer shall not acquire any rights to the programming service beyond the use within the scope of database utilisation. All other rights are reserved to the CO or its licensors; without their prior written consent, the Customer is therefore in particular not entitled to reproduce, modify, make accessible to third parties or use the software, databases, graphic designs or other items to which the rights of the CO or third parties exist other than at the agreed installation site for the contractual purpose to the extent of the number of licences acquired, unless otherwise agreed or this is mandatory due to the nature of the order.
4.1.4 The CL undertakes to use the object of performance in accordance with the contract and to indemnify and hold the CO harmless in this respect. With regard to the legal consequences of any infringements of third-party intellectual property rights by the CL or third parties attributable to the CL. (see point 8.3)
4.1.5 Unless otherwise agreed, a transfer of the source code from the CO to the CL is not owed. The source code shall remain the unrestricted property of the CO.
4.1.6 Should the CL demand a transfer of the source code from the CO, the CO shall be entitled to a separate instalment payment amounting to 100% of the order amount.
4.2 Proprietary Notices
4.2.1 Property notices, trademarks, network labelling or similar on the services of the CO or third parties may not be removed, edited, changed or made illegible by the CL.
4.3 Documents of the CO
4.3.1 Offers, execution documents such as plans or sketches, samples, catalogues, illustrations and other technical documents etc. of the CO shall remain the intellectual property of the CO and shall be subject to the relevant provisions of intellectual property law, in particular with regard to reproduction, imitation, competition and data protection.
4.3.2 Upon termination of the contractual relationship, any manuals and documentation provided in electronic form shall be deleted by the CL. These documents may also be transmitted in the original language, if their transmission has been agreed. However, the CO shall not be obliged to translate them into German.
4.4 Violation of these rights, consequences
4.4.1 Any infringement of these rights of the CO shall in any case result in claims for injunctive relief and damages, whereby full satisfaction shall be provided in such a case.
4.5 Competition
4.5.1 The CO is not prohibited from competing. The CO may work for the CL’s competitors in the same business area and the same product area at any time.
4.6 Employees
4.6.1 During the term of the contractual relationship and for 18 months after termination of the contractual relationship, the CL is prohibited from poaching employees or freelancers of the CO or employing them directly or indirectly. This includes any kind of independent or dependent employment of an employee of the CO by the CL or its affiliated companies (group subsidiaries, parent companies, shareholdings, etc.).In the event of infringement, the CO shall be entitled to claim damages, which shall not be subject to judicial mitigation, in the amount of EUR 100,000.00 per solicited employee/freelancer. The penalty must be transferred by the CL to the CO within 10 working days from the start of the service or contractual relationship.
5. Fee
5.1 General
5.1.1 All fees are net prices in euros excluding value-added tax (VAT), unless VAT is expressly stated, and shall apply until cancelled. Unless otherwise agreed, prices are subject to change.
5.1.2 Additional services such as, in particular, updates, upgrades, system support, training and maintenance work on the CO’s deliveries and services that go beyond any obligations and warranty claims shall be ordered separately and shall be charged separately at the CO’s applicable rates.
5.2 Terms of payment, default, retention of title
5.2.1 Unless otherwise agreed, invoices are due for payment promptly upon receipt. A payment term of 14 working days from the due date is expressly agreed, after which the invoice amount must be credited to the CO’s account. All payments are to be made free of charges and without deduction. Transfers shall be made at the risk of the CL. Collection and discount charges shall be borne by the CL.
5.2.2 The CO shall be entitled at any time to make the provision of services dependent on the provision of advance payments or the provision of other securities by the CL in an appropriate amount.
5.2.3 If instalments have been agreed, default on only one instalment – even if the Principal is not at fault – shall result in the loss of the deadline and the entire claim shall become due immediately.
5.2.4 In the event of default in payment, the CO shall be entitled to charge the statutory default interest of currently 8% above the applicable base rate of the Austrian National Bank. The costs of collection agencies and lawyers incurred in the event of default and necessary for appropriate legal action shall be borne by the CL.
5.2.5 In the event of default in payment, the CO shall also be entitled to suspend the fulfilment of all contractual obligations until the CL has fulfilled all payment obligations.
5.2.6 If the CL is in default of payment or performance despite having been granted a reasonable grace period of at least two weeks, or if the CL refuses to accept the object of purchase without cause, the legal consequences pursuant to Sections 3.2.4 and 3.2.5 shall apply.
5.2.7 In addition, the CO shall be entitled to repossess the service rendered – insofar as this is not impossible or impracticable – without judicial assistance and at the expense of the CL, excluding any right of retention on the part of the CL, following a prior written request by means of the power of attorney hereby granted by the CL.The CL shall be obliged to allow the CO immediate access to the premises in which the service rendered is located.
5.2.8 In all cases of cancellation of the contract, the service provided as well as components and accessories shall be returned to the CO by the CL at its expense and risk.If it is impossible or impracticable to return the service already provided by the CO, the CL shall reimburse the CO for its market value.
5.2.9 The service rendered shall remain the property of the CO until full payment of the remuneration including ancillary costs.
5.2.10 The Customer is obliged to treat the service with care during the existence of the retention of title and to carry out necessary maintenance and inspection work regularly at its own expense and to prove this to the CO in writing. The Customer must inform the CO immediately in writing of all access by third parties to the service, in particular of enforcement measures, as well as of any damage, the destruction of the service, a change of ownership and its own change of address. The CL shall compensate the CO for all damages and costs arising from a breach of these obligations and from necessary intervention measures against access to the service by third parties.
5.2.11 Any handling and processing of the service by the Customer shall always be carried out in the name of the CO. In the event that the goods are processed, the CO shall acquire co-ownership of the new item in proportion to the value of the service supplied by it.The same shall apply if the goods are processed or mixed with other items not belonging to the CO.
5.2.12 In the event of seizure or other utilisation of the service, the Customer shall be obliged to assert the CO’s ownership, to notify the CO immediately in writing and to reimburse the CO for all expenses incurred in maintaining ownership.
5.3 Objections, offsetting, right of retention
5.3.1 Objections to invoiced claims must be raised by the CL in writing within 10 days of the invoice date, otherwise the claim shall be deemed recognised.
5.3.2 Objections to the invoice raised by the CL shall not prevent the invoice amount from falling due, unless they are objections to obvious errors in the invoice.
5.3.3 The CL may only offset claims of the CO against claims established by a court or expressly recognised in writing by the CO. The CL shall not be entitled to a right of retention.
5.3.4 The CL agrees that all payments it makes shall first be offset against costs incurred, then against interest and only finally against the services (in particular goods) subject to retention of title. Any payment reservations by the Customer shall be irrelevant.
6. Availability
6.1 Availability, fault reporting
6.1.1 The CO shall provide its services with the greatest possible care, reliability and availability. However, the CO cannot guarantee that its services will be accessible without interruption, that the desired connections can always be established or that stored data will be preserved under all circumstances.
6.2 Incident Reporting
6.2.1 The CL shall be obliged to notify the CO immediately in writing of any disruptions to services and deliveries, stating the possible causes, and to enable the CO to rectify the disruption without delay.
6.3 Faults for which the CL is responsible
6.3.1 If fault clearance cannot be carried out or cannot be carried out on time for reasons within the CL’s sphere of influence, the resulting consequences cannot be charged to the CO. The CL shall reimburse the CO for any costs incurred as a result.
6.3.2 A malfunction shall be attributed to the CL in particular if the malfunction is due to programme changes, additions or other interventions by the CL or third parties, if the impairment was caused by computer viruses at the CL’s premises and if the CL or third parties have not complied with the guidelines and/or safety regulations imposed by the CO. The burden of proof for compliance with such regulations shall lie with the CL.
6.3.3 The CO shall notify the Customer in an appropriate manner and without culpable delay of any interruptions or significant restrictions to the systems in operation by the Customer, insofar as these are necessary in particular for maintenance, the performance of work necessary for operations, the improvement of a delivery or a service or the avoidance of disruptions. The CO shall not be liable for such interruptions, in particular in the event of defects in the availability of third-party lines and facilities.
7. Warranty
7.1 Period
7.1.1 The warranty period shall be 2 months from the time of the transfer of risk, even if the deliveries or services are firmly connected to a building or to the ground.
7.1.2 After expiry of the 2-month period, all warranty claims shall lapse, so that no recourse can be asserted against the CO by the CL in accordance with S 933b ABGB or § 379 UGB. The warranty does not extend to a specific economic success.
7.1.3 If the CL accepts the product and does not report any defects within 14 days, the product shall be deemed to have been accepted.
7.2 Notification of defects, duty to inspect
7.2.1 Warranty claims, including dealer recourse claims of the CL, require the submission of a written, detailed and timely notice of defects. The Customer is obliged to inspect the service for defects immediately after it has been provided. The same obligation to give notice of defects also applies to hidden defects, whereby the obligation to give notice of defects is triggered upon discovery of the defect. Defects in a part of the delivery cannot lead to a complaint about the entire delivery. If no complaint is made in good time, the goods shall be deemed to have been approved, whereby the assertion of warranty claims shall be excluded.
7.2.2 The Customer shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notice of defect. The presumption of defectiveness pursuant to § 924 ABGB is excluded.
7.3 Remedy by the CO
7.3.1 In the event of a defect covered by warranty, the CO shall, at its discretion, first replace the defective delivery or service or its defective parts, improve them on site or have them sent to it for improvement, or make a reasonable price reduction.
7.3.2 For warranty work at the Customer’s premises, the Customer shall provide the CO with the necessary labour, lifting equipment, scaffolding and small materials etc. free of charge. Replaced parts shall become the property of the CO.
7.3.3 If an improvement is not possible or feasible, the CL may, at its discretion, demand a price reduction or, if it is not only a minor defect, cancellation of the contract.
7.3.4 The CO shall only be obliged to provide a warranty if the CL has fulfilled its payment obligations in full. Warranty claims shall not entitle the CL to withhold performance.
7.4 Right of cancellation of the CL
7.4.1 If the CO is unable to fulfil the contractually agreed condition after repeated attempts and after setting a grace period of at least six weeks, the CL shall have the right to withdraw from the contract in writing with immediate effect.
7.4.2 The CL shall not be entitled to any claims for damages against the CO on the grounds of cancellation.
7.5 Exclusion of warranty
7.5.1 In the case of deliveries or services that are subsequently modified by the Customer’s own personnel or by third parties, the CO shall not be liable for any warranty; likewise, no warranty can be assumed for errors, malfunctions or damage that are attributable in particular to improper cabling, inadequate power supply or air conditioning and operation as well as non-compliance with safety regulations by the Customer or one of its employees as well as transport damage.
7.5.2 Furthermore, the CO shall not be liable for malfunctions and failures due to force majeure. The warranty does not apply to the replacement of parts that are subject to natural wear and tear. Faults, malfunctions or damage caused by operating errors or improper use on the part of the Customer or its employees are not covered by the warranty.
8. Liability
8.1 Preconditions
8.1.1 Outside the PHG as amended, the CO’s liability shall be limited to intent or gross negligence. The CO’s liability for slight negligence, compensation for consequential damages, financial losses, loss of profit, actions of its vicarious agents and for damages arising from third-party claims against the CL shall be excluded.
8.1.2 The above limitations of liability shall not apply to personal injury attributable to the CO, to damage to items handed over to the CO for processing and to atypical damage.
8.1.3 Warranty claims, claims for non-fulfilment and claims for damages on the part of the CL require the immediate submission of a written and detailed notice of defects in accordance with Section 7.2.
8.1.4 The CO shall not be liable for damage attributable to the actions of third parties or force majeure.
8.2 Equipment and Facilities Used
8.2.1 The CL shall be liable for damage to and loss of equipment and facilities of the CO which the CO has set up on the CL’s premises in the course of providing its deliveries or services, irrespective of the cause, thus also in the event of force majeure, unless the damage was caused by the CO or its authorised representatives.
8.3 Misuse of the Services
8.3.1 The CL undertakes to compensate the CO for any damage that the CO suffers as a result of a proven infringement of third-party rights by the CL – in particular due to patent, trademark, design protection, semiconductor protection, copyright and other related claims (e.g. under the German Unfair Competition Act) or claims based on personal rights or other industrial property rights. See also point 4.1.5.
8.3.2 Part of the damages to be compensated shall also include payments for an out-of-court settlement of disputes, which the CO may agree to with the CL’s consent. The CL may only refuse this consent for important reasons and not unreasonably.
8.4 Limitation of liability in terms of amount
8.4.1 The amount of the CO’s liability for each event causing damage, unless caused by intent or gross negligence, shall be limited to EUR 12,500.00 vis-à-vis the individual injured party and EUR 20,000.00 vis-à-vis all injured parties. If the total damage exceeds the maximum limit, the compensation claims of the individual injured parties shall be reduced proportionately.
8.4.2 This limitation of liability shall not apply to items taken into custody or work by the CO which are lost in the process.
9. Duration of contract
9.1 Ordinary termination
9.1.1 Unless otherwise agreed, all contractual relationships may be terminated in writing by the CO without stating reasons subject to a three-month notice period or, unless otherwise agreed, by the CL subject to a six-month notice period, to the last day of each calendar month.
9.1.2 The CO shall also be entitled to terminate the contractual relationship with regard to individual components only. The CL shall only be entitled to such termination if this has been expressly agreed.
9.2 Extraordinary termination
9.2.1 The CO shall be entitled to terminate the contract for good cause by unilateral declaration at any time with immediate effect. Good cause shall be deemed to exist in particular if insolvency proceedings are opened against the CL’s assets or if the opening of such proceedings is rejected for lack of cost-covering assets (the right of termination may be asserted for an unlimited period of time until the service has been rendered in full), if the CL breaches material confidentiality obligations or other material contractual provisions, or if the CL ceases to exist/deceases to exist or loses its own authorisation.
10. Hosting
10.1.1 The minimum contract term for hosting is 1 year. The hosting contract can be cancelled after the minimum contract term of 1 year at the end of each quarter with a notice period of 12 weeks. The hosting flat rate is always charged in advance for a period of 12 months.
11. Miscellaneous
11.1 Confidentiality, data protection, reference
11.1.1 The CL is obliged to maintain confidentiality of all information and data obtained in the execution of an order, unless he has been released from his obligation in writing by the CO.
11.1.2 The CL expressly agrees that the CO may use the order as a reference and for advertising purposes, press releases and the like.
11.1.3 The CL expressly agrees that its data in connection with the order placed may be processed by the CO and transmitted to companies affiliated with the CO. The CL may revoke this consent in writing to the CO at any time.
11.1.4 The CL shall only use such employees and vicarious agents who have been expressly obliged (in writing) to maintain confidentiality.
11.1.5 Furthermore, the CL undertakes to comply with the applicable security regulations of the CO and to observe all other statutory data protection provisions. In particular, the CL shall create the technical and organisational conditions to ensure that the provisions of Sections 14, 15, 26 and 27 DSG 2000 can be complied with at all times and undertakes to provide the CO on request with the information necessary to monitor compliance with the provisions of DSG 2000 and this Agreement.
11.1.6 In the event of a breach of statutory data protection provisions or other agreed confidentiality obligations by the CL, the payment of a penalty of 20% of the order amount per breach shall be agreed, depending on the fault of the CL and the evidence, which is not subject to the judicial right of moderation pursuant to Section 1336 ABGB. The right to claim further damages remains unaffected.
11.1.7 The obligations under clause 11.1 shall remain in force even after complete fulfilment of the order by the CO and after termination of all obligations for up to five years after termination, unless mandatory statutory provisions require an indefinite or in any case longer obligation.
11.2 Transfer of rights and obligations
11.2.1 The CL is not authorised to transfer rights and obligations to third parties without the consent of the CO. The present prohibition of assignment for payment claims was negotiated individually in accordance with § 1396a ABGB as amended.
11.3 Written form, contractual language, time limits
11.3.1 Any contractual agreements, their amendments and supplements as well as other agreements must be in writing and signed by both contracting parties in order to be valid, provided that they are bilateral. Any waiver of the written form requirement must also fulfil these conditions.
11.3.2 Electronic contractual declarations, other legally significant electronic declarations and electronic confirmations of receipt shall be deemed to have been received if the party for whom they are intended can retrieve them under normal circumstances. The receipt of declarations within the meaning of this provision shall be decisive for their timeliness and effectiveness.
11.3.3 The CL shall notify the CO immediately of any changes to its name or address. If no notification of change is made, documents shall be deemed to have been received by the CL if they were sent to the address last notified by the CL. If, in the event of a change of name which was not notified in good time, the CL requests the issue of a new invoice, the CO shall comply with this request as far as possible; however, this shall in no way prevent the original invoice from falling due.
11.3.4 The contractual language is English or German.
11.4 Support flat rate
11.4.1 If the customer does not order a support flat rate from Boom Strategy GmbH, all services purchased by the customer from Boom Strategy GmbH (including telephone support, telephone information, etc.) shall be invoiced on an hourly basis at the currently valid hourly rate. The support flat rate is always charged for a period of 6 months in advance
11.5 Severability clause
11.5.1 Should individual clauses of these GTC be or become invalid or inadmissible, this shall not affect the validity of the remaining provisions. The invalid or inadmissible provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or inadmissible provision. The same applies in the event of loopholes.
11.6 Place of jurisdiction, applicable law, interpretation
11.6.1 Austrian law shall apply exclusively to any disputes between the contracting parties. The place of jurisdiction shall be the competent court in Vienna, Austria. The CO shall also have the option to take legal action against the CL before the court that has local and subject-matter jurisdiction under the legal provisions applicable to the country in which the CL has its registered office.
11.6.2 The application of the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions of the IPRG is expressly excluded.
11.6.3 The application of §§ 9 para. 1 and 2, 10 para. 1 and 2 ECG is expressly excluded.
11.6.4 Headings in these GTC are for convenience only and do not interpret, limit or restrict the respective provisions.
