General Terms and Conditions
1.1. These General Terms and Conditions of Parkside Informationstechnologie GmbH (hereinafter referred to as Parkside) apply to all legal transactions, i.e. to all services that Parkside provides to the contractual partner.They also apply to future business and additional agreements, even if not expressly referred to.
1.2. All orders and agreements are only legally binding if they are signed by Parkside in writing and in accordance with the company and are only binding to the extent specified in the order confirmation.
1.3. General terms and conditions and purchasing conditions of the contractual partner are hereby excluded for the legal transaction in question and the entire business relationship, even if Parkside does not expressly object to them upon receipt.
1.4. Offers are generally non-binding.
1.5. Changes require express written confirmation by Parkside in order to be valid and only apply to the respective individual business case.
1.6. These General Terms and Conditions together with the other contractual documents (order documents, specification of services, master service agreement, service level agreement, etc.) including the related annexes form the contract in its entirety. In the event of a contradiction between these documents, the respective individual agreement, the offer documents, then the Service Level Agreement, then the Master Service Agreement and finally the General Terms and Conditions apply. The version of these General Terms and Conditions valid at the time of the conclusion of the contract is decisive.
1.7. Parkside reserves the right to change the terms and conditions at any time. The contractual partner will be informed of any such change in writing and can object to it within 10 days. If no objection is made, the amended terms and conditions will become part of the contractual relationship.
§2 Services and testing
2.1. The services to be provided by Parkside can in particular be:
— creation of individual software
— optical and technical update of Legacy Software
— improvement of existing systems and platforms
— global and detailed analyzes in the area of UX/UI
— digital product development
— migration from on-premise solutions to web solutions
— design and technology advice
— delivery of library (standard) programs
— acquisition of usage rights for software products
— acquisition of usage permits
— participation in commissioning (conversion support)
— telephone advice
— program maintenance
— creation of program carriers
— Other services
2.2. The services that Parkside provides are provided by Parkside carefully, according to the state of the art and in accordance with the written task assignment. The provisions of the law on contracts for work and services do not apply to the provision of services. The client is therefore responsible for the results it strives for and achieves. The use of Parkside services for specific purposes is not agreed.
2.3. Parkside provides its services on the basis of the information, documents and resources which are to be provided in full by the client. These also include, if necessary, practical test data as well as test options to a sufficient extent. The service description is to be checked by the client for correctness and completeness. Change requests occurring later can lead to changes in dates and prices.
2.4. If the client works with a system provided for test and implementation purposes in productive operation, the responsibility for backing up the data lies with the client. Parkside is not responsible for any loss of data. Any documentation will be handed over to the client in electronic form.
2.5. If it turns out in the course of the work that the execution of the order according to the service description is actually or legally impossible, Parkside is obligated to notify the client of this immediately. If the client does not change the service description to that effect or create the prerequisite for execution to be possible, Parkside can refuse execution. In this case, it is not necessary that the services of Parkside meet certain requirements or have certain functionalities. If the impossibility of execution is the result of a neglect by the client or a subsequent change to the service description by the client, Parkside is entitled to withdraw from the order. The costs and expenses incurred up to then for the activities of Parkside as well as any dismantling costs are to be reimbursed by the client.
2.6. Unless expressly agreed otherwise, the training of the client and its employees for the services provided (programs, etc.) is not included in the price and will be invoiced separately.
2.7. Commitments regarding performance characteristics are only binding if they are confirmed in writing by Parkside.
2.8. Insurance is only provided at the request of the client.
2.9. The client must also check the content provided by it for legal, in particular competition, trademark, copyright and administrative admissibility. In the event that Parkside is claimed by third parties because of such content in, the client will maintain Parkside completely free of damage and claims.
2.10. Parkside is not liable to the client for the legal admissibility of content if this was specified by the client.
2.11. Work services: The basis for the creation is the written service description (specification) that the client makes available or that Parkside prepares for a cost calculation based on the documents and information made available to it. The service description is to be checked by the client for correctness and completeness. Change requests occurring later can lead to changes in dates and prices. Unless otherwise agreed, the source code, including all rights to it, which are not required for the use of the product, of programs created for work services remains the property of Parkside, and will not be released to the client.
2.12. Maintenance: The subject of the contract can also be the maintenance of programs and systems.
2.13. Unless otherwise agreed, the source code of the programs created by Parkside, including all associated rights of use that are not required for use in accordance with the contract, remains the property of Parkside and will not be released to the client.
2.14. We expressly point out that a barrier-free design (of websites) within the meaning of the Federal Act on Equal Opportunities for People with Disabilities (Federal Disability Equality Act – BGStG) is not included in the offer, unless this was requested separately / individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the admissibility of the service with regard to the Federal Disability Equality Act. The client must also verify the content provided by him for legal admissibility- in particular competition law, trademark law, copyright law and administrative legality. In the event of slight negligence or after fulfilling any warning obligation to the client, Parkside is not liable for the legal admissibility of content which was specified by the client.
3.1. The basis for the creation of individual programs is the written service description, which Parkside generally prepares for a fee against a cost calculation based on the documents and information made available to it or provided by the client. This service description must be checked by the client for correctness and completeness and provided with a note of approval. Change requests occurring later can lead to separate deadline and price agreements.
3.2. If no order is placed on the basis of this offer within the period of validity, Parkside is entitled to charge the costs for the detailed specification and offer submission.
3.3. The preparation of individual organizational concepts and programs takes place according to the type and scope of the binding information, documents and resources made available in full by the client. This also includes practice-oriented test data as well as test options to a sufficient extent, which the client makes available on time, during normal working hours and at its own expense.
3.4. If the client is already working in real operation on the system made available for testing, the responsibility for backing up the real data lies with the client.
3.5. When ordering library (standard) programs, the client confirms knowledge of the scope of services of the ordered programs with the order.
3.6. Offers are generally non-binding.
§4 Content and optimization
4.1. With regard to mobile apps, mobile programs and web applications, the contractual partner agrees that, unless otherwise agreed, they will be developed and optimized according to the latest version of the operating system versions publicly available at the time the contract is concluded.
4.2. Required and not commissioned resources are to be made available by the client or commissioned separately. This includes not exclusively, but in particular: Access data to existing hostings, databases or web services; localized text and descriptions, as well as localized graphics or logos.
5.1. Each of the contractual partners can request changes to the scope of services agreed in the offer or contract from the other contractual partner in writing. After receiving a change request, the recipient will check whether and under what conditions the change can be carried out and notify the applicant of the approval or rejection immediately. If a change request from the client requires an extensive review, the resulting effort will be invoiced separately by Parkside. The contractual adjustments required for a change are regulated by a separate agreement.
5.2. Parkside can unilaterally change the services to be provided as agreed, provided that the change does not entail any or only insignificant disadvantages for the client. Parkside will inform the client about this.
Parkside can use subcontractors, in particular Parkside Portugal, a 100% subsidiary of Parkside, to provide services without the consent of the client. In this case, responsibility for the services rendered remains with Parkside. In particular, this also includes Parkside’s right to have individual parts of the order carried out by employees of the subcontractor or to carry them out itself.
§7 Delivery date, delivery deadlines, place of performance
7.1. Parkside endeavors to meet the agreed deadlines for fulfillment (completion) as exactly as possible.
7.2. Additional services or changes to an existing order always require the written form and a separate order confirmation from Parkside. In the event of changes, the client expressly agrees to a longer project duration.
7.3. Agreed delivery time/fulfillment dates are always approximate and non-binding.
7.4. The desired fulfillment dates can only be met if the client provides all necessary work and documents in full on the dates specified by Parkside, in particular the service description accepted by it according to Point 2.3 and if it fulfills its obligation to cooperate to the required extent.
7.5. Parkside is not responsible for delays in delivery and cost increases that result from incorrect, incomplete or subsequently changed details and from information or documents that do not exist, are not complete or are not made available in a timely manner, and this cannot result in Parkside being in default. The resulting additional costs and other disadvantages, in particular due to delays, are borne by the client.
7.6. In the case of orders that include several units or programs, Parkside is entitled to make partial deliveries or to issue partial invoices.
7.7. Unless otherwise agreed, Parkside provides its services at the registered office of Parkside or remotely.
7.8. The client agrees to exceed the mutually planned end date by 25% of the project duration. This will be communicated to the contractual partner immediately as soon as and if it becomes apparent. The contractual partner does not incur any additional costs as a result.
§8 Prices, taxes and fees
8.1. Unless otherwise agreed in the offer, all prices are in Euro and do not include sales tax. They only apply to the present order.
8.2. The prices quoted are from the registered office of Parkside. Unless otherwise agreed, remuneration will be based on effort.
8.3. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (advice, programming, training, conversion support, etc.), the workload will be charged at the rates applicable on the day the service is provided.
8.4. If there are deviations from the time effort on which the contract is based, for which Parkside is not responsible, the additional effort will be charged according to its actual occurrence.
8.5. The costs for travel, daily and overnight allowances will be invoiced to the client separately according to the applicable rates. Travel times are counted as working time. Costs for accommodation, meals and other travel expenses are shown separately and are not part of the travel costs. Unless otherwise agreed, this also applies to an agreed flat rate.
8.6. Assessments and the preparation of offers will be invoiced to the contractual partner according to the actual effort.
9.1. The invoices submitted by Parkside, including sales tax, are payable promptly without deductions and exempt from charges after receipt of the invoice. For partial invoices, the terms of payment specified for the entire order apply correspondingly.
9.2. In the case of orders that include several units (e.g. programs and/or training courses, implementation in partial steps), Parkside is entitled to invoice each individual unit or service after delivery, for which the terms of payment specified for the entire order also apply.
9.3. A payment is deemed to have been made on the day on which it is received in the account announced by Parkside.
9.4. Adherence to the agreed payment dates is an essential condition for the execution of the delivery or the fulfillment of the contract by Parkside. Failure to comply with the agreed payments entitles Parkside to suspend ongoing work for the time being and to withdraw from the contract after setting a period of grace of at least 3 days. If the payment is also not made within the deadline, the withdrawal of Parkside from the contract becomes effective without the need for any further contractual declarations from Parkside. All associated costs as well as the loss of profit are to be borne by the client.
9.5. In the event of default in payment, default interest of 9.2% above the base rate will be charged. In the event that two installments are not met in the case of partial payments, Parkside is entitled to allow the loss of a deadline to take effect and to make acceptances handed over due.
9.6. The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.
9.7. If the contractual partner is in default with an agreed payment or other service from this or other business, Parkside may, without prejudice to its other rights
(a) postpone the fulfillment of its own obligation until this payment or other service has been effected and make a reasonable extension of the service period,
(b) make all outstanding claims from this and/or other transactions due and charge default interest for these amounts from the respective due date in the amount of 9.2% above the base interest rate and, regardless of this, claim any damage caused by the default in payment.
In any case, Parkside is entitled to invoice pre-litigation costs, in particular reminder fees and legal fees.
9.8. Delays in payment entitle Parkside to increase the planned lead time of the project by twice the duration of the delay, without the need for a separate agreement.
9.9. The presumption of deficiency according to § 924 Austrian Civil Code (ABGB) is excluded.
9.10. Electronic billing
Parkside is entitled to send invoices to the contractual partner in electronic form and the contractual partner expressly agrees to this type of sending
§10 Project management
10.1. All projects are managed by Parkside according to the agile principle.
10.2. The contractual partner is cooperatively involved in agile project management in the planning phase and iterative further development. The agile project management according to the specifications of Parkside is therefore the subject of any cooperation contract.
10.3. The project is processed iteratively in two to four-week cycles.
§11 Cooperation of the client
11.1. The success of the services to be provided by Parkside depends on the cooperation of the client. Therefore, the client creates all prerequisites in its sphere that are necessary for the proper provision of the services. If necessary, the client will in particular:
— at the beginning of the assignment, designate all contact persons and those employees who will assist the employees of Parkside in the performance of the services and ensure their cooperation;
— for services to be provided by Parkside, appoint a System manager including a representative with decision-making authority on the part of the client;
— provide all information necessary to fulfill the order in good time and update it on an ongoing basis;
— guarantee immediate decision-making during or after the cyclical review meetings;
— notify recognizable defects and malfunctions immediately;
— take all measures within the context of what is reasonable to enable the detection of defects and malfunctions and their causes and to facilitate and support their elimination;
— enable access to the facilities and systems of the client and create the possibility of access to the required servers;
— support Parkside in the preparation and implementation of the necessary meetings and ensure that the relevant employees participate;
Provide the necessary rooms and workplaces for Parkside employees for tasks that are carried out on site at the premises of the client.
If obligations to cooperate are not or only partially fulfilled, this can lead to delays in deadlines and increases in costs for which the client is responsible.
§12 Project acceptance
12.1. The service of Parkside is deemed to have been completed when Parkside has carried out and delivered all activities defined in writing with the contractual partner in order to fulfill the order.
12.2. Individually created software or program adaptations require a program acceptance for the respective program package concerned no later than 10 working days after delivery by the client. If the client allows the period of 10 working days to pass without the program acceptance, the software supplied is deemed to have been accepted on the end date of the period mentioned. If the software is used in real operation by the client, the software is deemed to have been accepted in all cases.
12.3. Any defects that occur, i.e. deviations from the service description agreed in writing, must be reported to Parkside by the client in a sufficiently documented manner, and Parkside will endeavor to rectify any possible defects as quickly as possible. If Parkside does not receive a signed list of defects within 10 working days after delivery, the delivery or the order is deemed to have been fulfilled and accepted. If there are significant defects reported in writing, i.e. real operation cannot be started or continued, a new acceptance is required after the defect has been remedied.
12.4. The client is not entitled to refuse acceptance of software due to minor defects.
§13 Copyright and use
13.1. Parkside grants the client unlimited and exclusive rights of use to the work results that have been developed. The client can expand, transfer, revise, adapt, change, reproduce or publish all work results without the consent of Parkside and/or transfer them to third parties for use or exploitation. In particular, for the individual software created in the context of an offer or contract, Parkside grants the client an unlimited, transferable, sublicensable and exclusive right of use.
13.2. The rights of use for the software created are only transferred when all services provided by Parkside have been paid for in full. Parkside revocably tolerates the use of the software by the client until payment has been made in full. Parkside can revoke the use of such software, for which the client is in payment default, even partially, for the duration of the default.
13.3. Parkside is to be named as the originator of the service.
13.4. The client is entitled to transfer the above rights in whole or in part to third parties without further consent from Parkside or to split off simple rights and grant them to third parties. All property rights to work results that form the content of the contract and did not arise in the context of the performance of the contract (pre-existing work results) remain with Parkside.
13.5. The cooperation of the client in the production of the software does not acquire any rights beyond the use specified in the present contract.
13.6. Any infringement of the copyrights of Parkside will result in claims for damages, in which case full satisfaction must be provided.
13.7. The client is permitted to make copies for archiving and data backup purposes on condition that the software does not contain an express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged in these copies.
13.8. If the client is provided with software whose license owner is a third party (e.g. standard software from Microsoft), the granting of the right of use is based on the license terms of the license owner (manufacturer).
§14 Source code
Unless otherwise agreed, the source code of the programs created by Parkside, including all associated rights of use that are not required for use in accordance with the contract, remains the property of Parkside and will not be released to the client.
§15 Right of withdrawal
15.1. In the event that an agreed delivery time is exceeded due to the sole fault of Parkside or unlawful action on its part, the client is entitled to set a reasonable period of grace of at least 6 weeks by means of registered letter and to withdraw from the order in question, if Parkside fails to provide the agreed service in substantial parts within the period of grace and the client is not at fault.
15.2. Parkside endeavors to meet the agreed deadlines for the fulfillment of the service as exactly as possible. If unforeseeable circumstances or circumstances independent of the will of the party, such as all cases of force majeure, labor disputes, natural disasters and transport bans as well as other circumstances that are beyond the control of Parkside, occur that prevent compliance with the agreed deadline for delivery or service provision, this shall in any case be extended for the duration of these circumstances. If it is foreseeable that these circumstances will not cease to exist within the foreseeable future, Parkside will be released from its delivery obligation or can optionally set the agreed delivery time again. These circumstances also entitle the deadline to be extended if they occur with subcontractors.
15.3. Cancellations by the client are only possible with the written consent of Parkside. If Parkside agrees to a cancellation, it has the right to charge a cancellation fee of at least 30% of the not yet invoiced order value of the overall project in addition to the services provided and costs incurred. However, Parkside is free to charge a higher cancellation fee depending on the individual circumstances of the order.
15.4. Should it turn out in the course of the work that the execution of the order according to the service description is legally or actually impossible or economically unreasonable, Parkside is obligated to notify the client of this immediately. If the client does not change the service description to that effect or does not create the prerequisite for execution to be possible or reasonable, Parkside can refuse execution. The client is to reimburse Parkside for the costs and expenses incurred up to that point, as well as any dismantling costs.
§16 Warranty, maintenance, changes
16.1. Parkside guarantees that the software fulfills the functions described in the associated documentation, provided that the software is used on the operating system described in the contract.
16.2. Parkside does not guarantee that the program is completely error-free and will run uninterrupted, however if a defect occurs within the warranty period that not only negatively affects the use of the program, it will, at its option, correct the defect.
16.3. Notices of defects must be made in writing or by email, specifying the defect in detail.
16.4. In the case of a guarantee, improvement has priority over price reduction or conversion.
16.5. If the notification of defects is justified, the defects will be remedied within a reasonable period of time, whereby the client enables Parkside to take all measures necessary to investigate and remedy the defects. Furthermore, Parkside does not accept any liability for errors, malfunctions or damage due to improper operation, changed operating system components, interfaces and parameters, the use of unsuitable organizational means and data carriers, insofar as these are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage.
16.6. For a warranty claim for services or functions provided by means of services in the sense of agile software development, defects can only be expressly asserted in relation to written specifications and their acceptance criteria. Furthermore, the client must adequately describe the error in an error notification for troubleshooting and make this determinable for Parkside and provide Parkside with all the documents required for troubleshooting. In addition, the prerequisite for troubleshooting is that the client or a third party attributable to it has not made any changes to the software and has not changed, edited, further developed or linked it with other programs. Parkside does not provide any warranty for programs that are subsequently changed by the client’s own programmers or by third parties.
16.7. In order to assert a warranty claim for services or functions provided by means of services in the sense of agile software development, the contractual partner must prove defects during the limited warranty period.
16.8. Parkside is only obligated to remedy a defect if it is caused by the following reasons:
— if functionalities implemented contradict the defined requirements, in particular the acceptance criteria of the respective product backlog item;
— if functionalities of defined requirements, in particular of acceptance criteria of the respective product backlog item, are wholly or partially missing;
— if defined requirements have not been fully implemented;
— in the event of a programming error caused by incorrect or improper use of software development concepts or programming methods.
16.9. Costs for assistance, fault diagnosis as well as error rectification and troubleshooting for which the client is responsible as well as other corrections, changes and additions are carried out by Parkside for a fee. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client itself or by a third party.
16.10. Insofar as the subject of the order is the change or addition to existing programs, the warranty relates to the change or addition. The guarantee for the original program is not revived thereby. This warranty does not apply to software and services (test versions, etc.) that were made available free of charge.
If there is no warranty case for defects reported by the client, the client bears the costs for troubleshooting and, if necessary, fault rectification.
16.11. If services such as advisory and support services are provided within the scope of the contractual relationship, the responsibility for the results achieved lies with the client; a warranty claim does not result.
16.12. Warranty claims become statute-barred six (6) months after delivery. This also applies to defects that were not recognizable at the time of handover.
16.13. For programs that are subsequently changed by the client’s own programmers or by third parties, any warranty by Parkside does not apply.
17.1. Parkside is only liable to the client for damage that can be proven to be caused by it in the event of gross negligence. This also applies correspondingly to damage caused by third parties brought in by Parkside. Liability for slight negligence is excluded, with the exception of personal injury. Parkside has unlimited liability in the event of culpable personal injury. Liability for indirect damage, such as lost profit, costs associated with business interruption, loss of data or claims by third parties, is expressly excluded.
17.2. The client must provide evidence that the damage is due to the fault of Parkside.
17.3. The liability and indemnity of Parkside in connection with the order of the client or any agreement shall be limited to 500,000 Euro with the value of the order and irrespective thereof, except in the case of intent or personal injury, unless expressly agreed otherwise.
17.4. Claims for damages become statute-barred within one year from knowledge of the damage and the damaging party and at least 3 years after the occurrence of the damage.
17.5. If Parkside performs the work with the help of third parties and warranty and/or liability claims against these third parties arise in this context, Parkside assigns these claims to the client. In this case, the client will give priority to these third parties.
17.6. If data backup is expressly agreed as a service, in deviation from point 2.4, liability for the loss of data is not excluded, however the recovery of data is limited to a maximum of 10 % Euro of the order amount per claim, but not more than 15,000 Euro per claim. Any further warranty and compensation claims of the client other than those mentioned in this contract, regardless of the legal reason, are excluded.
17.7. For system components from third parties that are used in the context of the project and that are obtained by the client in its own name, the client assumes liability towards the third-party manufacturers for any infringements of property rights resulting from their use.
§18 Use of ASP and data center services and online services by the client
The client is responsible for entering and maintaining the data and information required to use the ASP and RZ services and online services. The client remains “Owner of the data” and is therefore responsible for compliance with data protection regulations. The client is obliged to comply with all applicable legal provisions on use. It is forbidden to post or transmit information and data that violate legal provisions or common decency, that interfere with or violate third-party industrial property rights and copyrights or other rights of third parties. Parkside is entitled to block access to information or data if parts of it are illegal or if there is a suspicion in this regard that is justified by objective evidence.
The contractual partners commit themselves to mutual loyalty. They will refrain from any enticement or employment, including through third parties, of employees who have worked on the implementation of the orders of the other contractual partner for the duration of the contract and 12 months after the end of the contract. The contractual partner who violates this is obliged to pay lump-sum compensation in the amount of the gross annual salary of the employee without the need to provide evidence that the damage actually occurred. Parkside is also entitled to claim damages beyond this contractual penalty in addition to this.
Parkside is entitled to refer to the business relationship with the client and the related key data of ongoing and completed projects and orders (“references”) of the client when participating in public tenders, on its website and in its publications.
When developing mobile applications for the client, Parkside is entitled to place the words “Developed by Parkside Interactive, www.parkside-interactive.com” including the contact details in the app.
Parkside obliges its employees to comply with the provisions of § 6 of the Data Protection Act.
Should individual provisions of this contract be or become ineffective, this does not affect the rest of the content of this contract. The contractual partners will work together in partnership to find a regulation that comes as close as possible to the ineffective provisions.
§23 Final provisions
23.1. Unless otherwise agreed, the statutory provisions that apply between entrepreneurs apply exclusively under Austrian law with the exception of the reference standards, even if the order is carried out abroad. The applicability of the UN sales law is excluded.
23.2. For any disputes, only the local jurisdiction of the competent court for the registered office of Parkside shall apply as agreed. If there are several courts available, the respective plaintiff has the choice of which court to process the action in.
23.3. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions only apply insofar as the Consumer Protection Act does not necessarily provide for other provisions. The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to inform each other immediately of any changes.
23.4. Changes to the contract and these General Terms and Conditions must be made in writing; as must a withdrawal of this formal requirement.
Last updated August 2021