Version dated by 17.12.2021
Disclaimer: This document is a non-binding translation of the original text in German. In case of discrepancies or contradictions between the German original text and the translated version, only the German version is to be considered authentic and legally binding.
1. Scope of application
CryptIT GmbH (hereinafter referred to as ‘Cryptit’) shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). These GTC shall apply to the entire present and future legal relationships between Cryptit and the Customer (hereinafter jointly referred to as ‘the Contracting Parties’). Deviations from these GTC and other additional agreements must be agreed in writing in order to be valid. Amendments to the GTC shall be notified to the Customer and shall be deemed to have been agreed if the Customer does not object to the amended GTC in writing within seven days. The Customer shall be expressly informed of the significance of silence in the notification.
2. Scope of services, changes in the provision of services
2.1. The exact scope of services shall be set out in the written description of services, e.g. in the offer, and shall form the basis for the order. The Customer declares his agreement to the service description by placing the order. Subsequent requests for changes to the scope of services may lead to separate agreements on dates and prices. Any such change to the scope of services shall only be binding once it has been confirmed in writing by Cryptit.
2.2. All services provided by Cryptit must be accepted by the Customer for the relevant part of the service at the latest four weeks after delivery. Acceptance shall be confirmed by the Customer in writing. If the Customer allows the period of four weeks to elapse without accepting the service, the delivered service shall be deemed to have been accepted on the end date of the said period. A going live of the delivered service (website, software, etc.) shall in any case be deemed as acceptance. Partial commissioning of the delivered service shall only be possible by mutual agreement. A prerequisite is also a pro rata payment for the partially commissioned component. If commissioning or going live of the Delivered Service takes place without prior acceptance, the commissioned part of the Delivered Service shall be deemed accepted thereby.
2.3. Any deficiencies that occur, i.e. deviations from the service description agreed in writing, must be sufficiently documented by the Customer and reported to Cryptit, which shall endeavor to remedy the deficiencies as quickly as possible. The Customer is not entitled to refuse acceptance of the service due to minor deficiencies.
2.4. Any factual or legal impossibility of providing the service that occurs at a later date shall oblige Cryptit to notify the Customer immediately. If the Customer does not change the description of the service or does not create the conditions for its execution to become possible, Cryptit may refuse to execute the order. If the impossibility of execution is the result of a failure on the part of the Customer or a subsequent change to the service description by the Customer, Cryptit is entitled to withdraw from the contract. The costs and expenses incurred for Cryptit’s services up to that point, as well as any costs, are to be reimbursed by the Customer.
2.5. Software components used in the course of the order (e.g. open source) shall be used in the agreed version. If no version has been agreed upon, the current or Long Time Support version at the time of the order shall apply, at the discretion of Cryptit. Interfaces are created on the basis of the interface description valid at the time of the order. Expenses resulting from a change made to the interface specification after this date will be invoiced additionally on a time and material basis.
3.1. Cryptit is entitled, at its own discretion, to perform the service itself, to make use of expert third parties as vicarious agents in the provision of services that are the subject of the contract and/or to substitute such services (‘Third Party Services’). The commissioning of third parties within the scope of an external service shall be carried out either in its own name or in the name of the Customer.
3.2. If Cryptit commissions necessary or agreed third-party services, the respective contractors shall not be vicarious agents of Cryptit. The Customer shall enter into obligations towards third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the contract for good cause.
4. Obligations of the Customer
4.1. The Customer shall provide Cryptit in a timely and complete manner with all information and documents are required for the provision of the service. The Customer shall inform Cryptit of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. The Customer shall bear the expense of services that have to be repeated or are delayed due to incorrect, incomplete or subsequently changed information provided by the Customer to Cryptit.
4.2. The Customer is furthermore obliged to check the documents provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free from the rights of third parties and can therefore be used for the intended purpose. The liability of Cryptit in the case of merely slight negligence or after fulfillment of the duty to warn due to an infringement of such third party rights by documents provided by the Customer is excluded. If a claim is made against Cryptit by a third party due to such an infringement of rights, the Customer shall indemnify and hold Cryptit harmless and shall compensate all disadvantages incurred by Cryptit as a result of a claim made against it by a third party, in particular the costs of appropriate legal representation. The Customer undertakes to support Cryptit in defending itself against any claims by third parties. The Customer shall provide Cryptit with all necessary documents for this purpose without being requested to do so.
4.3. If the execution of the order is delayed for reasons for which the Customer is responsible, Cryptit may demand an appropriate increase in the remuneration. In the event of intent or gross negligence, Cryptit is also entitled to assert claims for damages. This does not affect the assertion of further damage caused by delay.
5.1. Stated delivery or performance deadlines are only approximate and non-binding, unless they have been expressly agreed as binding. Binding agreements on deadlines must be recorded in writing or confirmed by Cryptit in writing.The targeted performance dates can only be met if the Customer provides all the required services and documents in full on the dates specified by Cryptit and meets its obligation to cooperate to the necessary extent.
5.2. Cryptit is not responsible for delays in delivery and increases in costs that arise due to incorrect, incomplete or subsequently changed details and information or documents provided and these shall not be considered as a default on the part of Cryptit. Any resulting additional costs shall be borne by the Customer.
5.3. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of Cryptit, the Customer shall be entitled to withdraw from the order in question by means of a registered letter, insofar as the agreed service is not provided in essential parts even within the reasonable grace period and the Customer is not at fault for this. Claims for damages by the Customer due to non-performance or delay shall be excluded, except in the case of evidence of intent or gross negligence.
5.4. Force majeure and other circumstances beyond Cryptit’s control shall release Cryptit from its obligation to deliver or allow Cryptit to reschedule agreed deadlines.
6. Remuneration and terms of payment
6.1. The fee claim of Cryptit arises for each individual service as soon as it has been provided. The fee is understood to be a net fee plus value added tax at the statutory rate. In the absence of an agreement in the individual case, Cryptit shall be entitled to a remuneration customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
6.2. Cryptit is entitled to demand payments on account to cover its expenses. In the case of partial deliveries, partial invoices are always permissible.
6.3. Current lump-sum cost amounts are payable by the Customer in advance for the calendar year/partial year. In the event of increases in wage and material costs or other costs and charges occurring after conclusion of the contract, Crypit is entitled to increase any flat-rate amounts accordingly and to charge them to the customer as of the beginning of the month following the increase. The increases shall be deemed accepted by the customer if the increases do not exceed 10% per annum.
6.4. All services of Cryptit that are not expressly compensated or compensated by the agreed fee shall be remunerated separately. The costs for travel, daily and overnight allowances shall be invoiced separately to the Customer in accordance with the applicable rates. Travel times shall be deemed to be working time.
6.5. Cost estimates and offers from Cryptit are non-binding. If it is foreseeable that the actual costs will exceed those estimated by Cryptit in writing by more than 15%, Cryptit shall draw the Customer’s attention to the higher costs. The Customer shall be deemed to have approved the cost overrun if the Customer does not object in writing within three working days of this notification and at the same time informs Cryptit of more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This overrun shall be deemed to have been approved by the customer in advance.
6.6. If the Customer unilaterally changes or cancels services commissioned without the involvement of Cryptit, the Customer shall compensate Cryptit for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not due to a grossly negligent or intentional breach of duty on the part of Cryptit, the Customer must also reimburse Cryptit for the entire fee agreed for this order. Furthermore, Cryptit shall be indemnified and held harmless with respect to any claims of third parties.
6.7. Unless special terms of payment have been agreed in writing in individual cases, all invoices issued by Cryptit shall be due for payment immediately upon receipt of the invoice and without deduction. For partial invoices, the terms of payment specified for the overall order shall apply accordingly. Compliance with the agreed payment dates constitutes an essential condition for the execution of the delivery or fulfillment of the contract by Cryptit. Failure to comply with the agreed payments shall entitle Cryptit to stop the work in progress and to withdraw from the contract. All costs connected therewith and loss of profit shall be borne by the Customer.
6.8. In the event of a delay in payment, a default interest at a rate of 4 percent above the base interest rate shall be charged. In the event of non-compliance with two installments in the case of partial payments, Cryptit shall be entitled to demand immediate payment of all installments. In the event of the Customer’s default in payment, Crypit shall declare all services and partial services provided within the framework of other contracts concluded with the Customer to be immediately due and payable. There is no obligation on the part of Cryptit to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay fees remains unaffected by this.
6.9. The Customer shall only be entitled to set-off with a counterclaim that has been recognized by Cyptit in writing or that has been legally established. The Customer is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
7. Intellectual property
7.1. After full payment of the agreed remuneration, Cryptit shall grant the Customer a non-exclusive, non-transferable, non-sublicensable right for an unlimited period of time to use the services rendered for the application provided for in the contract, as well as to use all work results created by Cryptit on the basis of the order for its own internal use. All other rights shall remain with Cryptit. The Customer’s participation in the delivery of the service shall not result in the acquisition of any rights over and above the use stipulated in the present contract. Any infringement of Cryptit’s copyrights shall result in claims for damages, in which case full satisfaction shall be paid.
7.2. The transfer of development data, such as source code, texts, layouts, must be agreed separately. Changes or processing of Cryptit’s services, such as their further development by the Customer or by third parties working for the Customer, are only permitted with the express consent of Cryptit and – insofar as these are protected by copyright – of the author. The Customer is only entitled to carry out data processing if this has been agreed in writing and for an appropriate additional fee. Insofar as the Customer is provided with data or software whose license holder is a third party, the license provisions of the license holder shall apply to the granting of the right of use. The Customer shall be liable to Cryptit for any unlawful use in the double amount of the fee appropriate for this use.
7.3. Subject to the Customer’s written revocation, which is possible at any time, Cryptit is entitled to refer to the existing or former business relationship with the Customer on its own advertising media and on its Internet website with the name, company logo and project description.
8. Premature termination of the contract
8.1. Cryptit is entitled to terminate the contract with immediate effect for good cause. An important reason exists in particular if the performance of the service becomes impossible for reasons for which the Customer is responsible, or is further delayed despite the setting of a grace period of 14 days; if the Customer continues to violate essential obligations from this contract despite a written warning with a grace period of 14 days, or if there are justified concerns regarding the creditworthiness of the Customer and the Customer does not make advance payments or provide suitable security at the request of Cryptit.
8.2. The Customer is entitled to terminate the contract for good cause without setting a extension of time. As important reason shall be deemed in particular if Cryptit continues to violate material provisions of this contract despite a written warning and setting of a reasonable extension period of at least 14 days to remedy the breach of contract.
8.3. In the event of a continuing obligation, each contracting party shall be entitled to terminate the contractual relationship in writing by giving three months’ notice to the last day of the respective month.
9. Warranty provisions and Troubleshooting
9.1. The Customer must notify Cryptit of any deficiency without delay, in any case within four weeks of delivery of the service, otherwise the service shall be deemed to have been approved. In the event of approval, the assertion of warranty claims and claims for damages, as well as the right to contest error on the basis of deficiencies, shall be excluded. The presumption of defectiveness pursuant to sec 924 Austrian Civil Code shall be deemed excluded. Costs arising from the use of third parties despite Cryptit’s willingness to remedy deficiencies shall be borne by the Customer.
9.2. Until delivery of the agreed service, additions and/or corrections due to organizational and programming deficiencies for which Cryptit is responsible shall be made by Cryptit free of charge. Costs for assistance, misdiagnosis, and elimination of errors and faults for which the Customer is responsible, as well as other corrections, changes and additions, shall be carried out by Cryptit against appropriate remuneration. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the Customer itself or by third parties. Cryptit shall not assume any warranty for the service as a whole for services subsequently changed by the Customer or third parties.
9.3. In order for Cryptit to rectify an error, the Customer must provide a sufficient description of the error by means of an error message and the Customer must provide all documents required for the rectification of the error. In addition, neither the Customer nor a third party attributable to it may have interfered with the service provided, the software must have been operated under the intended operating conditions in accordance with the documentation and the error may not occur either in an open source component or in a third-party component of the solution provided.
10.1. Cryprit shall only be liable to the Customer for damages for which Cryptit is demonstrably responsible in the event of gross negligence, except in the case of personal injury. This shall also apply mutatis mutandis to damage caused by Cryptit’s vicarious agents. The burden of proof for the existence of gross negligence shall be borne by the injured party. Insofar as the liability of Cryptit is excluded or limited, this also applies to the personal liability of its shareholders, employees, contractors or other vicarious agents. Claims for damages are limited to the net order value. Liability for indirect damages, e.g. loss of profit, costs associated with business interruption, loss of data or claims by third parties, is expressly excluded.
10.2. If services are provided with the assistance of third parties, Cryptit shall assign any claims of the Customer against these third parties. In this case, the Customer shall give priority to these third parties.
10.3. If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from clause 10.1, but shall be limited to a maximum of EUR 10 % of the order sum per case of damage, but not more than EUR 15,000.00 for the recovery of data. Any warranty claims and claims for damages on the part of Cryptit that go beyond those specified in this contract – irrespective of the legal grounds – are excluded.
The contracting parties shall be loyal to each other. They shall refrain from any enticement and employment of employees who have worked on the realization of the orders for the duration of the contract and 24 months after its termination. The contracting party violating this provision shall be obliged to pay lump-sum damages in the amount of EUR 50,000.00.
12. Severability clause
Should any provisions of this contract be legally invalid or unenforceable, without invalidating the remaining provisions thereof. A void, unenforceable or unenforceable provision shall be replaced by such legally valid, feasible and enforceable provision which comes closest to it in terms of the legally and economically pursued purpose.
13. Final Provisions
13.1. Unless otherwise agreed, the legal provisions applicable between entrepreneurs shall be governed exclusively by Austrian law, excluding international rules of reference and the UN Convention on Contracts for the International Sale of Goods.
13.2. For all disputes and claims arising from or in connection with the contractual relationship between Cryptit and the Customer, or relating to its violation, dissolution or invalidity, the contracting parties mutually and exclusively agree on the jurisdiction of the locally competent court for the registered office of Cryptit.