GENERAL TERMS AND CONDITIONS

 

of ICS Internationalisierungscenter Steiermark GmbH, FN 262667a, 8010 Graz, Lindweg 33 | (hereinafter referred to as: “ICS”)

1. Scope of Application

  • These General Terms and Conditions (hereinafter referred to as “GTC”) govern the current or future cooperation between ICS Internationalisierungscenter Steiermark GmbH, FN 262667a, 8010 Graz, Lindweg 33, (hereinafter referred to as: “ICS”), as well as the subsidiaries of ICS on the one hand, and any contractual partner of ICS or its subsidiaries on the other hand, in connection with offers, orders, deliveries, and services of any kind. ICS concludes contracts exclusively on the basis of these GTC. Any terms and conditions of the contractual partner are expressly excluded.
  • For reasons of better readability, the simultaneous use of male, female, and diverse (m/f/d) linguistic forms is avoided. All personal designations apply equally to all genders.

2. Scope of Contract and Validity

  • All orders and agreements are only legally binding if they are signed in writing by ICS. They are binding only to the extent specified in the order confirmation or the agreement. Inquiries made by ICS or information provided by ICS are generally subject to change and non-binding. A contractual relationship between the contractual partners is established when ICS confirms the placement of an order in writing.
  • ICS is entitled to withdraw from placing an order at any time and free of charge if contract negotiations fail. In this case, the contractor waives any claims against ICS.
  • These GTC also apply to future transactions between existing contractual partners, even if they are not expressly referred to.

3. Legal Status of the Contractual Partners

  • The contractor acts as an independent entrepreneur for ICS. To the extent that ICS agrees in writing, the contractor may also use qualified subcontractors to fulfill the contract. A prerequisite for the permissibility of involving subcontractors is always that they are disclosed to ICS in writing in advance. ICS expressly reserves the right to reject any subcontractors without giving reasons.
  • The contractual partners mutually establish that this is a bilateral business transaction (“B2B”), so that regulations serving consumer protection do not apply to the contractual relationship.

4. Performance of Contract and Acceptance

  • The contractor must provide the services in such a way that the services and results correspond to the best possible achievable state of advanced technology at the time of acceptance.
  • Insofar as information, data, and documents are provided to the contractor by ICS, the contractor is obliged to check them immediately for completeness and consistency. Insofar as it is recognizable to the contractor that data, information, or documents are missing or show contradictions, the contractor has an express duty to warn—otherwise losing the claim to remuneration and being obligated to pay damages.
  • ICS is entitled to refuse the acceptance or takeover of services due to defects. ICS is not obliged to give notice of defects pursuant to §§ 377 and 378 of the Austrian Commercial Code (UGB). The failure to give notice has no legal effect on the warranty claims, damage claims, or other claims of ICS. In the event of a formal acceptance, the contractor must participate without further remuneration. In this case, ICS determines the date for the formal acceptance after the contractor has announced that they are ready for acceptance. If ICS accepts the performance of a service despite existing defects, the performance claims of ICS regarding identified defects or outstanding partial services remain fully in force. For the rectification of these defects or the provision of the outstanding partial services, a separate partial acceptance must take place if ICS so requests. In this case, ICS is entitled to make use of its legal right of retention to the maximum extent possible.

5. Obligations of the Contractor/Cooperation

  • The contractor undertakes to deploy an appropriate number of employees and subcontractors (after approval by ICS) so that no delays in planning and implementation occur. The contractor must name a responsible contact person to ICS at the beginning of the contract performance. This person must also be authorized to legally represent the contractor.
  • The contractor is obliged to provide ICS with information at any time about the services to be rendered and those already rendered. The contractor must grant ICS access to all documents concerning the order at any time if ICS so requests. Upon request, the contractor must hand over or transmit the documents or at least copies of the documents—if ICS so wishes, also in digital form—to ICS. This also applies in the event of premature termination of the contract. If the contractor does not comply with this duty to provide information, they shall be liable for a contractual penalty in accordance with point 12.
  • Both contractual partners will promote and coordinate the planning and implementation of the order in terms of content and timing. The contractor will make pending decisions immediately and inform ICS accordingly.

6. Deadlines and Delay in Performance

  • The contractor must provide the services assigned to them in a timely manner so that the planning and implementation of the services are not delayed. The contractor must provide and complete their services on the basis of the agreed schedule. In all their deadline commitments, the contractor must also take into account that ICS may require review periods and, in the event of defects, may demand rectifications—if necessary, multiple times—from the contractor.
  • The schedule can be supplemented during the contract term by detailed process schedules, which—in the absence of agreement—shall be specified by ICS.
  • The contractor must inform ICS in writing immediately upon becoming aware of any imminent or occurring delays in the services owed, regardless of who is responsible for these delays. At the same time, the contractor must submit proposals on how these delays can be eliminated and how the originally agreed schedule can be caught up. If the contractor does not comply with this information obligation, they shall be liable for a contractual penalty in accordance with point 12.
  • If the final deadline of the order and/or an expressly penalized intermediate deadline (milestone) is delayed due to the fault of the contractor, the contractor shall be liable for a contractual penalty in accordance with point 12; this is without prejudice to the obligation to compensate for any damage exceeding the penalty.
  • If the contractor is in default with their performance, ICS has the right to withdraw from the contract after setting a reasonable grace period; this is without prejudice to the contractor’s full liability for damages in the event of fault. Alternatively, ICS is entitled to insist on the fulfillment of the service by the contractor—again without prejudice to the contractor’s liability for damages in the event of fault. If the contractor falls into default with their performance despite a reasonable grace period and ICS withdraws from the contract, ICS only has to remunerate partial services already rendered to the extent that these partial services are separately usable or exploitable for ICS without additional effort and are of independent benefit. ICS is not obliged to such a partial acceptance unless the contractual partners have expressly agreed otherwise.
  • The occurrence of extraordinary and/or unforeseen circumstances, such as force majeure, pandemic events, or the like, generally does not change the contractor’s performance obligation. Regardless of this, ICS and the contractor will endeavor to find a regulation adapted to the circumstances of the individual case.

7. Usage Rights

  • Unless the contractual partners expressly agree otherwise, the contractor grants ICS exclusive usage rights, unlimited in time and place, to the works or services created within the scope of the service provision. The contractor also grants these usage rights to ICS for all preliminary designs, rough designs, drafts, plans, documentations, etc. All mentioned documents become the property of ICS upon full payment in accordance with the contract. The created works or services can be used, published, and distributed by ICS for all purposes. ICS is also entitled, itself or through third parties, to process and change the works or services of the contractor and to transfer the granted usage rights in whole or in part to third parties for a fee or free of charge, or to have the granted rights exercised or perceived by third parties.
  • Unless the contractual partners expressly agree otherwise, the contractor grants ICS a non-exclusive usage authorization for all works and parts of services that they did not create individually for ICS within the scope of the service provision, but used or utilized in the course of the service provision and/or which are necessary for the (continued) intended use of the contractor’s service(s) by ICS. The scope and extent of this usage authorization are based on the subject matter of the contract. Unless the contractual partners have expressly agreed otherwise, the usage authorization covers at least the use of such standard works worldwide for an unlimited period for the intended use. ICS itself or its agents may process interfaces to the standard works to the necessary extent. Publication or distribution is permissible insofar as this results at least indirectly from the purpose of the contract.
  • Insofar as the subject of performance includes photos, films, or database works, all performance rights of photographers, film producers, and database manufacturers as well as all image rights are also covered.
  • The contractor undertakes to indemnify ICS against all rights of third parties, in particular
    copyright, patent, and/or other protective rights, which they used in the execution of the contractual services. The contractor guarantees to ICS that the fulfillment of the order and the granting of usage rights do not affect and/or violate any third-party rights of any kind, in particular because the contractor created all services themselves with regard to intellectual property and/or possesses the corresponding rights. The contractor shall hold ICS completely harmless and indemnified in this regard.

8. Remuneration, Terms of Payment

  • ICS shall pay the contractor the remuneration agreed in the order for the agreed services plus the statutory value-added tax in accordance with the relevant provisions of the Value Added Tax Act.
  • After defect-free performance and acceptance by ICS, the contractor will invoice ICS for the agreed remuneration in accordance with the provisions of the Value Added Tax Act. Payments are due within 45 days after receipt of the invoice. Invoicing is inadmissible and/or the maturity of the invoices does not occur as long as the contractor’s services are defective. In the event of default in payment, ICS owes the statutory interest. Any further claims or damage claims of any kind by the contractor are hereby excluded, unless another express written regulation has been made.

9. Liability and Claims for Defects

  • The liability of the contractor is governed by the general provisions of civil law, unless the contractual partners have expressly agreed otherwise in individual cases. The contractor’s liability for the accuracy and completeness of their services is not affected by the fact that ICS recognizes or agrees to the service. Damage claims by ICS exist regardless of the amount to which the contractor has covered them through insurance.
  • The contractor is liable—even in the case of slight negligence—for all personal injury, property damage, and financial loss (in particular also lost profit) caused by the contractor or their vicarious agents to ICS or its contractual partners. The same applies in the event of omission or improper fulfillment of contractually provided work or other violations of this contract. The contractor shall hold ICS completely harmless and indemnified in the event of claims by third parties, unless they themselves or their vicarious agents are not at fault.
  • The burden of proof for the absence of defects or fault lies in any case with the contractor (reversal of the burden of proof).

10. Liability Insurance

  • To insure any claims for compensation arising from this contract, the contractor must provide proof of liability insurance after conclusion of the contract if ICS so requests. The insurance coverage must cover the possible risks in every respect for personal injury and other damages. ICS has the right to reject the submitted insurance confirmation without giving reasons and to demand the submission of another confirmation of coverage, whether with another insurance company or in another, if necessary also higher, amount.
  • The contractor must prove the existence of insurance coverage to ICS upon request by a confirmation letter from the insurer addressed to ICS. In this letter, the insurer must also undertake to inform ICS immediately if the insurance coverage no longer exists or no longer exists in the confirmed amount. If the insurance coverage lapses during the contract term, ICS has a right of withdrawal and/or extraordinary termination without notice of the concluded contract. The contractor has no claim to payments before the required proof of insurance coverage is provided.

11. Confidentiality and Data Security

  • The contractor undertakes to comply with the Austrian Data Protection Act (DSG) and the EU General Data Protection Regulation (GDPR). If a subcontractor engaged by the contractor violates data protection provisions, the contractor is fully liable.
  • The contractor may only use the business secrets, documents, experience, and knowledge of or about ICS and its employees to achieve the service owed contractually to ICS. The contractor must treat information as strictly confidential towards third parties. In particular, the contractor must maintain the strictest silence regarding all information about ICS that is not contained in official advertising materials, announcements, or media of ICS.
  • The contractor must oblige all persons or subcontractors involved in the project and/or commissioned with data processing to maintain data secrecy and confidentiality before starting their activities. These confidentiality obligations remain in force even after the end of their activity and departure from the contractor.
  • The contractor may only entrust another entrepreneur with the performance of processing if ICS agrees in writing. In this contract, the contractor must ensure that the entrepreneur enters into the same obligations as the contractor themselves must comply with on the basis of these GTC.
  • The contractor may only pass on information and data to third parties if ICS has ordered this in writing.
  • The contractor undertakes to store information and data of ICS only if this is necessary for the performance of the contractual services. The contractor will limit access to information and data to those persons who have been obliged to maintain confidentiality and who absolutely need this data to perform their work.
  • The contractor declares in a legally binding manner that they will take sufficient security measures within the meaning of the GDPR to prevent data from being used unlawfully or becoming accessible to third parties without authorization. The contractor will keep all documents and materials provided to them as well as data carriers and data properly and secured against access by third parties. The contractor will encrypt data stored on stationary or mobile computers according to the state of the art. The contractor undertakes in particular
    • to use and maintain secure systems according to the state of the art,
    • to use configured firewalls to protect sensitive data and data connections,
    • to use encryption in the context of electronic transmission of sensitive data if the client provides for it,
    • to regularly change standard and system passwords,
    • to use and regularly update anti-virus software,
    • to assign a unique identification for each person with computer and data access,
    • to regularly test the security systems and processes, and
    • to create, maintain, and announce an enacted information security policy for employees.
  • The contractor is liable for ensuring that the IT (hardware and software) used by them is free of viruses, worms, Trojans, and other malware of any kind.
  • In the event of data damage, abusive interception of data, or any other data incident, the contractor must notify ICS immediately and without delay. This notification obligation also exists if the contractor only suspects an incident or there is a risk of an incident, until this risk is eliminated. In the event of data damage, abusive interception of data, or any other data incident, the contractor must inform ICS in particular about which data is involved in the incident and whether it is data subject to special provisions within the meaning of the DSG or the GDPR. If the data is subject to such special provisions, the contractor must have an expert opinion on the incident prepared by an external independent expert at their own expense. The expert opinion must determine the actual course and cause of the incident, as well as state whether the special provisions were complied with. The contractor must obtain all waiver and/or consent declarations necessary for the expert opinion.
  • After performance or after termination of the contractual services, the contractor will return all documents created in connection with the individual order, materials handed over, information and data, as well as copies thereof, to ICS immediately and without being asked. Stored data must be irretrievably deleted. A right of retention does not exist. The contractor must delete data according to a recognized standard.
  • The contractor shall provide for the technical and organizational requirements so that ICS can fulfill the provisions of Art. 15 to 17 GDPR (right of access, right to rectification, right to erasure) towards the data subject at any time within the statutory periods and shall provide ICS with all necessary information immediately in the event of an occasion.
  • If the contractor does not comply with their obligations according to point 11, they shall be liable for a contractual penalty in accordance with point 12.
  • The contractor grants ICS the right to control their data processing facilities and implementation of security standards and data protection measures at any time by agreement, either themselves or through third parties. The contractor will provide ICS with the information that ICS needs to control the obligations mentioned in these GTC.

12. Penalties

  • Insofar as it is separately stated in these GTC for the violation of a contractual obligation that the contractor becomes liable for a penalty, the contractor must pay a contractual penalty in the amount of EUR 5,000.00 to ICS in the event of a culpable violation of this obligation.
  • The total penalty to be paid is capped annually at 20 percent of the total net order value, but always amounts to at least EUR 5,000.00. ICS reserves the right to assert further damage claims.

13. Separate Contractual Agreements

Should the circumstances of the individual case in connection with a contractual agreement
(e.g., in connection with the provision of intellectual services, creation of studies and consulting services, provision of IT goods deliveries and IT services, construction and delivery services) make it necessary, ICS expressly reserves the right to specify separate contractual regulations in individual cases that supplement these GTC.

14. Other Provisions

  • No side agreements have been made. Changes or supplements require the written form to be legally effective. This also applies to the waiver of the written form requirement.
  • The contractor is not entitled to assign their claims from the contract. The contract also passes to the legal successors on the part of both contractual partners.
  • The law of the Republic of Austria applies exclusively, with the exception of referral provisions to foreign law. The UN Convention on Contracts for the International Sale of Goods is excluded.
  • ICS processes the order with the help of automatic data processing. The contractor hereby gives ICS their express consent to the processing of data that has become known within the framework of contractual relations and is necessary for order processing.

15. Final Provisions

  • The place of jurisdiction and performance is Graz.
  • Should provisions of these GTC or the contract be or become legally ineffective, or should a gap be found in the contract or the GTC, this shall not affect the validity of the remaining provisions of the contract or the GTC. The contractual partners must behave in such a way that the intended purpose is achieved and everything is undertaken that is necessary to immediately remedy the partial invalidity or legal ineffectiveness or to fill the gap. In place of the ineffective provision or to fill the gap, an appropriate, legally permissible regulation shall apply that comes closest to what the contractual partners would have wanted if they had considered the partial invalidity, legal ineffectiveness, or gap.