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Terms and Conditions
General Terms and Conditions for Information Technology Services (B2B)
2024 Edition
Professional Association for Management Consulting, Accounting, and Information Technology
Wiedner Hauptstraße 63
A-1045 Vienna
T: +43-(0)-590900-4908
Email: ubit@wko.at
1. General
1.1. The Contractor (C) shall provide the Client (C) with services in the field of information technology and in the operation of hardware and software components in compliance with the attached Service Level Agreements (SLAs), which form an integral part of this agreement.
1.2. These General Terms and Conditions (GTC) apply to all current and future services provided by the Contractor to the Client, even if no explicit reference is made to the GTC at the time of contract conclusion in individual cases. The Client’s terms and conditions shall apply only if they have been accepted in writing by the Contractor.
2. Scope of Services
2.1. The exact scope of the Contractor’s services is specified in the respective SLA with the Client. Unless otherwise agreed, the Contractor shall provide the services during the Contractor’s normal business hours as specified in the SLA. The Contractor shall ensure the provision and availability of the services in accordance with the respective SLA.
2.2. The basis for the facilities and technology used by the Contractor to provide the services is the Client’s qualitative and quantitative service requirements, as determined on the basis of the information provided by the Client. If new requirements from the Client necessitate a change to the services or the technology used, the Contractor shall submit a corresponding offer at the Client’s request.
2.3. The Contractor is entitled to change the equipment used to provide the services at its discretion, provided that no impairment of the services is to be expected.
2.4. Services provided by the Contractor that are utilized by the Client beyond the agreed scope of services shall be remunerated by the Client based on actual personnel and material costs at the rates applicable at the Contractor at the time. This includes, in particular, services provided outside the Contractor’s normal business hours, as well as the analysis and resolution of malfunctions and errors resulting from improper handling or operation by the Client or other circumstances for which the Contractor is not responsible. Likewise, training services are generally not included in the scope of services and require a separate agreement.
2.5. If the Contractor arranges for third-party services at the Client’s request, such contracts are concluded exclusively between the Client and the third party in accordance with the third party’s respective terms and conditions. The Contractor is only responsible for the services it provides itself.
2.6. We expressly point out that a barrier-free design, in particular within the meaning of the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act – BGStG), the Federal Act on Barrier-Free Access to Federal Websites and Mobile Applications (Web Accessibility Act – WZG), or the Federal Act on Accessibility Requirements for Products and Services (Accessibility Act – BaFG), which enters into force on June 28, 2025, is not included in the offer, unless specifically/individually requested by the Client. If barrier-free design has not been agreed upon, the Client is responsible for verifying the service’s compliance with the relevant legal provisions.
3. Client’s Obligations to Cooperate and Provide Resources
3.1. The Client undertakes to support all measures necessary for the Contractor to provide the services. The Client further undertakes to take all measures necessary to fulfill the contract that are not included in the Contractor’s scope of services.
3.2. If the services are provided on-site at the Client’s premises, the Client shall provide, free of charge, the network components, connections, power supply (including surge protection), emergency power supplies, space for equipment, workstations, infrastructure, and any other necessary resources required for the Contractor to provide the services, in the necessary scope and quality (e.g., air conditioning). In any case, the Client is responsible for compliance with the requirements specified by the respective manufacturer for the operation of the hardware. Likewise, the Client must ensure the security of the premises and building, including protection against water, fire, and unauthorized access. The Client is solely responsible for any special security measures (e.g., secure rooms) on its premises. The Client is not authorized to issue instructions—of any kind—to the Contractor’s employees and shall direct all requests regarding the provision of services exclusively to the contact person designated by the Contractor.
3.3. The Client shall, at the agreed times and at its own expense, provide all information, data, and documents required by the Contractor to perform the contract in the form requested by the Contractor and, upon request, shall assist the Contractor with problem analysis and troubleshooting, the coordination of processing orders, and the coordination of services. Changes in the Client’s workflows that may result in changes to the services to be provided by the Contractor for the Client require prior consultation with the Contractor regarding their technical and commercial implications.
3.4. Unless expressly included in the scope of services provided by the Contractor, the Client shall arrange for a network connection at its own risk and expense.
3.5. The Client is obligated to treat the passwords and logins required to use the Contractor’s services as confidential.
3.6. The Client shall additionally store the data and information provided to the Contractor on its own premises so that it can be reconstructed at any time in the event of loss or damage.
3.7. The Client shall fulfill all obligations to cooperate in a timely manner so that the Contractor is not hindered in the provision of the services. The Client shall ensure that the Contractor and/or third parties commissioned by the Contractor are granted the necessary access to the Client’s premises for the provision of the services. The Client is responsible for ensuring that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract cooperate accordingly in the performance of the contract.
3.8. If the Client fails to fulfill its obligations to cooperate by the agreed deadlines or to the extent provided for, the services rendered by the Contractor shall nevertheless be deemed to have been performed in accordance with the contract, despite any possible limitations. Schedules for the services to be rendered by the Contractor shall be postponed to a reasonable extent. The Client shall separately reimburse the Contractor for any additional expenses and/or costs incurred as a result, at the Contractor’s then-current rates.
3.9. The Client shall ensure that its employees and third parties attributable to it handle the equipment and technologies used by the Contractor, as well as any assets provided to it, with due care; the Client shall be liable to the Contractor for any damage.
3.10. Unless otherwise agreed, any materials provided or cooperation rendered by the Client shall be free of charge.
3.11. If the Contractor provides the Client with storage space, the Client is obligated not to store any data on it whose use violates applicable law, official orders, the rights of third parties, or agreements with third parties. In addition, the Client is obligated to check the data for viruses or other harmful components before storing it on this storage space and to use state-of-the-art measures (e.g., antivirus programs) for this purpose.
4. Personnel
4.1. If, pursuant to the agreements reached between the contracting parties, employees of the Client are taken on by the Contractor, a separate written agreement must be concluded to this effect.
5. Change Requests
5.1. Both contracting parties may request changes to the scope of services at any time (“Change Request”). However, a requested change must include a precise description of the change, the reasons for it, and its impact on the schedule and costs, in order to allow the recipient of the Change Request to make an appropriate assessment. A Change Request becomes binding only upon the legally valid signature of both contracting parties.
6. Breaches of Contract
6.1. The Contractor undertakes to perform the services in accordance with the contract. If the Contractor fails to provide the services at the scheduled times or provides them defectively, i.e., with significant deviations from the agreed-upon quality standards, the Contractor is obligated to immediately begin rectifying the defects and to provide its services properly and free of defects within a reasonable period of time by, at its discretion, repeating the affected services or performing necessary corrective work.
6.2. If the defectiveness is due to materials provided or cooperation by the Client or to a breach of the Client’s obligations under Section 3.9, any obligation to remedy defects free of charge is excluded. In such cases, the services provided by the Contractor shall nevertheless be deemed to have been performed in accordance with the contract, despite any possible limitations. At the Client’s request, the Contractor shall undertake to remedy the defect at the Client’s expense.
6.3. The Client shall assist the Contractor in remedying the defect and provide all necessary information. Any defects that arise must be reported by the Client to the Contractor immediately in writing or by email. The Client shall bear any additional costs incurred in remedying the defect due to a delayed report.
6.4. The warranty period is six (6) months. The Client’s rights under the warranty and any claims arising therefrom shall in any case become time-barred one (1) month after the end of the respective warranty period. The possibility of raising a defense against the claim for payment within the meaning of § 933(3) ABGB is excluded.
6.5. The obligation to update pursuant to § 7 VGG in conjunction with § 1(3) VGG is excluded in its entirety, unless expressly agreed otherwise. With regard to updates, therefore, only the relevant agreements between the contracting parties shall apply.
6.6. The provisions of this section apply mutatis mutandis to any deliveries of hardware or software products by the Contractor to the Client. Section 924 of the ABGB (“Presumption of Defectiveness”) is mutually excluded. For any third-party hardware or software products provided to the Client by the Contractor, the respective warranty terms of the manufacturer of such products shall take precedence over the provisions of this section. The Contractor retains title to all hardware and software products delivered by it until full payment has been made.
7. Contractual Penalty
7.1. The Contractor is obligated to adhere to the service levels and recovery times specified in the SLA in accordance with their priorities. Should the Contractor exceed the time limits specified in the SLA for recovery, the Contractor shall pay penalties to the Client in accordance with the SLA for each hour or portion thereof that the time limit is exceeded, until actual recovery (fulfillment) is achieved: The aforementioned penalties per year are capped at 20% of the total annual fee. The assertion of any claim for damages exceeding this amount is excluded, except in cases of intent or gross negligence. Should any violations subject to penalties occur, the Contractor must be notified immediately in writing.
8. Liability
8.1. The Contractor shall be liable to the Client for damages demonstrably caused by the Contractor only in cases of gross negligence or willful misconduct. This applies mutatis mutandis to damages attributable to third parties engaged by the Contractor. In the event of personal injury caused by the Contractor, the Contractor shall be liable without limitation.
8.2. Liability for indirect damages—such as lost profits, costs associated with business interruption, data loss, or third-party claims—is expressly excluded.
8.3. Claims for damages shall be barred by the statute of limitations in accordance with statutory provisions, but no later than one year after the date on which the damage and the party responsible for it became known.
8.4. If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against such third parties in this context, the Contractor shall assign these claims to the Client.
8.5. If data backup is expressly agreed upon as a service, liability for data loss is not excluded notwithstanding Section 8.2; however, liability for data recovery is limited to a maximum of 10% of the contract amount per claim, up to a maximum of EUR 15,000. Any warranty and damage claims of the Client beyond those specified in this contract—regardless of the legal basis—are excluded.
8.6. The Contractor shall not be liable for disruptions to the telecommunications infrastructure, including telephone lines.
9. Remuneration
9.1. The remuneration and terms to be paid by the Client are set forth in the contract. Statutory value-added tax shall be charged additionally.
9.2. Travel time for the Contractor’s employees shall be considered working time. Travel time shall be compensated at the agreed hourly rate. The rates specified shall be adjusted in accordance with the price escalation clause in Section 9.5. In addition, travel expenses and any accommodation costs shall be reimbursed by the Client based on actual expenses. Reimbursement of necessary travel, lodging, and meal expenses shall be made upon presentation of receipts (copies).
9.3. The Contractor is entitled at any time to make the provision of services contingent upon the Client’s payment of advance payments or the provision of other security in an appropriate amount.
9.4. Unless otherwise agreed in the contract, one-time payments shall be invoiced after the service is rendered; recurring payments shall be invoiced quarterly in advance. Invoices issued by the Contractor, including sales tax, are payable no later than 14 days after receipt of the invoice, without any deductions and free of charges. For partial invoices, the payment terms specified for the entire contract apply analogously. A payment is deemed to have been made on the day the Contractor can dispose of it. If the Client is in default of payment, the Contractor is entitled to charge statutory default interest and all costs necessary for collection. Should the Client’s default exceed 14 days, the Contractor is entitled to suspend all services. The Contractor is also entitled to demand immediate payment for all services already rendered, regardless of any payment deadlines.
9.5. Ongoing remuneration is based on the collective bargaining agreement salary of an employee of a company in the field of services in automatic data processing and information technology at the experience level for specialized activities (ST2).
9.6. The Client may only set off claims against the Contractor’s claims if the Client has a counterclaim that has been acknowledged by the Contractor or has been legally established. The Client has no right of retention.
9.7. All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Client. Should the Contractor be held liable for such taxes, the Client shall indemnify and hold the Contractor harmless.
10. Force Majeure
10.1. To the extent and for as long as obligations are prevented due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargoes, governmental intervention, power outages, failure of transportation, failure of telecommunications networks or data lines, changes in the law affecting the services after the conclusion of the contract, or other unavailability of products, this shall not constitute a breach of contract.
11. Rights of Use for Software Products and Documentation
11.1. To the extent that the Contractor provides software products to the Client or enables the Client to use software products within the scope of the services, the Client shall have the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.
11.2. When using software products on a network, a license is required for each concurrent user. When using software products on “standalone PCs,” a license is required for each PC.
11.3. For third-party software products provided to the Client by the Contractor, the respective license terms of the manufacturer of such software products shall take precedence over the provisions of this section.
11.4. Unless otherwise agreed, no further rights to software products shall be transferred to the Client. The Client’s rights under Sections 40d and 40e of the German Copyright Act (UrhG) shall not be affected thereby.
11.5. All documents provided to the Client by the Contractor, in particular the documentation for software products, may neither be reproduced nor distributed in any manner, whether for a fee or free of charge.
11.6. The documentation necessary for operational use and the required passwords shall be handed over on-site upon system handover. The system and administrator passwords, as well as the system documentation, shall be handed over immediately upon receipt of full payment and upon request by the Client, provided that this does not affect other agreements regarding the service contract and system warranty.
12. Term of the Contract
12.1. The contract enters into force upon signature by both contracting parties and is valid for an indefinite period. The contract may be terminated by either contracting party by registered letter, subject to a notice period of 6 months, but no earlier than the end of the minimum term agreed upon in the contract.
12.2. Each contracting party is entitled to terminate the contract prematurely and without notice for good cause by registered letter. Good cause shall be deemed to exist in particular if the other contracting party, despite a written warning and threat of termination, breaches material obligations under the contract, or if the other contracting party’s performance is hindered or prevented for a period exceeding six months as a result of force majeure.
12.3. Upon termination of the contract, the Client must immediately return to the Contractor all documents and documentation provided to it by the Contractor.
12.4. Upon request, the Contractor shall assist the Client at the end of the contract, at the Contractor’s applicable hourly rates, in transferring the services back to the Client or a third party designated by the Client.
13. Data Protection
13.1. The privacy policy pursuant to Articles 13 and 14 of the GDPR is attached to the order.
14. Confidentiality
14.1. Each contracting party undertakes to the other to treat all trade secrets disclosed to it by the other party in connection with this contract and its performance as such and not to make them accessible to third parties, unless they are generally known, or were already known to the recipient prior to disclosure without any obligation of confidentiality, or were communicated or provided to the recipient by a third party without any obligation of confidentiality, or have been demonstrably developed independently by the recipient, or must be disclosed pursuant to a final administrative or judicial decision.
14.2. Subcontractors affiliated with the Contractor shall not be considered third parties to the extent that they are subject to a confidentiality obligation corresponding in substance to this provision.
15. Non-Solicitation
15.1. During the term of the contract and for a period of one year following the contract’s expiration, the Client shall not solicit, either directly or through third parties, any employees deployed by the Contractor to perform the services. The Client undertakes to pay the Contractor a contractual penalty for each instance of non-compliance in the amount of twelve times the gross monthly salary last received by the employee in question from the Contractor, but at least the collective bargaining wage of an employee of a company in the field of services in automatic data processing and information technology at the experience level for specialized activities (ST2).
16. Final Provisions
16.1. The contracting parties shall designate in the contract knowledgeable and competent employees who are authorized to make or initiate the necessary decisions.
16.2. Amendments and supplements to the contract must be in writing. This also applies to the waiver of this formal requirement.
16.3. Should one or more provisions of the contract be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid provision that most closely approximates the economic purpose of the invalid or unenforceable clause.
16.4. Any disposition of the rights or obligations arising from the contract requires the prior written consent of the other contracting party. However, the Contractor is entitled to transfer the contract to a company affiliated with the Contractor under group law even without the Client’s consent.
16.5. Unless otherwise agreed, the statutory provisions applicable between business entities shall apply exclusively under Austrian law, even if the contract is performed abroad. For any disputes, the exclusive local jurisdiction of the competent court for the Contractor’s place of business shall be deemed agreed. The Professional Association for Management Consulting, Accounting, and Information Technology recommends the following mediation clause as a business-friendly means of dispute resolution: In the event of disputes arising from this contract that cannot be resolved amicably, the contracting parties mutually agree to engage registered mediators (ZivMediatG) specializing in business mediation from the Ministry of Justice’s list for the out-of-court settlement of the conflict. Should no agreement be reached regarding the selection of business mediators or the substance of the matter, legal action shall be initiated no earlier than one month after the failure of negotiations. In the event that mediation does not take place or is terminated, Austrian law shall apply in any subsequent court proceedings. All necessary expenses incurred as a result of prior mediation, in particular those for a legal advisor engaged for this purpose, may be claimed as “pre-litigation costs” in court or arbitration proceedings in accordance with the agreement.