General Terms and Conditions
1. scope of application
The following terms and conditions apply to all deliveries and services of Inscript. These terms and conditions also apply to future business transactions. Contradictory terms and conditions, in particular purchasing conditions of the customer, do not apply. An objection by Inscript is not required. The amendment of these terms and conditions requires the written form. The order or acceptance of a delivery or service shall in any case be deemed as acceptance of these terms and conditions.
2 Offer, Price, Placing of Order, Conclusion of Contract
Offers by Inscript are subject to change. A contract is only concluded upon order confirmation or delivery by Inscript. Inscript invoices its deliveries and services on the basis of the hourly rates valid at the time of the conclusion of the contract. The hourly rates are an integral part of the contract even if they are not expressly made known to the customer. The hourly rates apply to work performed on working days between 8 a.m. and 8 p.m. (regular working hours). Work outside these hours will be charged with a surcharge of 50 %, work on Saturdays, Sundays and public holidays with a surcharge of 100 %. All hourly rates are subject to value added tax at the statutory rate. Travel time will be charged at the currently valid hourly rate for travel time according to the hourly rate list or the respective offer. Material costs, esp. data carriers, printouts, copies, set-up fees, etc. will be invoiced by Inscript on a monthly basis according to expenditure.
If the delivery is made at a later date due to circumstances within the customer's control, Inscript is entitled to compensate for higher costs resulting therefrom with correspondingly higher prices. This does not affect Inscript's right to compensation for damages it otherwise incurs. All taxes, customs duties and other charges payable by the customer on the occasion of the acceptance of the delivery/service are to be borne by the customer, unless Inscript has expressly agreed in writing to bear them. If the customer changes services, specifications for services or the scope of services after the conclusion of the contract and if this causes additional expenses or if Inscript has to provide additional services or services outside of the regular working hours in order to meet the customer's deadlines, Inscript is entitled to demand additional compensation according to the agreed hourly rates after prior notice. The same applies to additionally commissioned services. In all such cases, Inscript is entitled to refuse performance if the customer objects to the announced additional remuneration.
Inscript is entitled to have its deliveries/services performed by third parties. This is done in the name and for the account of the customer.
3. delivery time, partial delivery, place of performance
A delivery date is met if the delivery/service has left Inscript on the date or if the customer has been notified that the delivery/service is ready for shipment. Compliance with agreed delivery dates requires that the customer fulfills his obligations to cooperate, e.g., fulfills required permits, documents, releases, own services, and other obligations in a timely and complete manner. If this does not happen and a timely delivery/service is no longer possible even with additional services from Inscript or is not desired by the customer, the deadline for delivery is extended by an appropriate period of time. Fixed transactions are not concluded.
If the non-observance of an agreed delivery period is due to force majeure such as server failure, fire, water, lightning strike, machine breakdown, unforeseen obstacles or other circumstances for which Inscript is not responsible, the delivery period will be extended for the duration of these events. This applies accordingly in the event that Inscript is in default of delivery upon the occurrence of one of these events. Inscript is entitled to early delivery as well as to make partial deliveries. Partial deliveries may be invoiced by Inscript immediately. The customer is obligated to accept the delivery/service within eight days after receipt of the notification of readiness at the agreed place of acceptance, otherwise the customer is in default of acceptance and payment is due immediately. If the delivery/service of Inscript goes live (going-live), it is accepted in any case. Place of performance is Dornbirn.
Inscript warrants that deliveries and services comply with the contract (specifications) and fulfill the properties warranted in writing. Warranty claims of the customer require that the customer complies with his legal and contractual obligations to inspect and give notice of defects within 28 days from delivery/service. Inscript warrants that its own services are, to the best of its knowledge, free of any third party rights that may prevent the contractual use of these own services.
Inscript is entitled, at its own discretion, to remedy a defect by improvement or replacement. Warranty claims do not exist if the occurred defect is causally related to a previously occurred defect which was not reported immediately or if the customer does not comply with the regulations or specifications regarding installation, hardware and software environment and use and conditions of use. If Inscript merely passes on services of third parties (e.g. photographers, illustrators, service providers, database developers, etc.) to the customer, Inscript does not warrant for them. If the customer does not provide Inscript with the defective delivery/service upon request or if the customer sells or uses the defective delivery/service, all warranty claims are void. Warranty claims expire six months after acceptance.
5. compensation (liability)
Inscript is liable for damages only if they are caused by gross negligence or intent. As far as mandatory law allows, Inscript is not liable for consequential damages such as loss of profit, loss of revenue, loss of business, higher costs. With regard to the freedom from viruses, Inscript is only liable for the fact that the delivery/service has been checked for freedom from viruses with standard virus programs. A further check is not part of the service/delivery of Inscript, therefore the liability for freedom from viruses, as far as it goes beyond the agreed check, is excluded. As far as Inscript merely passes on services of third parties (e.g. photographers, illustrators, service providers, database developers, etc.) to the customer, Inscript's liability is limited to the fault of selection. If Inscript sells hardware and/or software in connection with the service, Inscript's liability is limited to that of the manufacturer and supplier of such hardware and/or software. Inscript agrees, if necessary, to assign to the customer the claims to which Inscript is entitled in this respect. Inscript is liable for ensuring that its own services are, to the best of its knowledge, free of third party rights that prevent the contractual use of these own services. The clarification of the freedom from such rights (collision research, rights clearing) is not part of the delivery/service of Inscript, which is why Inscript does not assume any liability for it. The customer has to take care of the compliance with the legal regulations and in particular has to make sure that the delivery/service is free from competition law and trademark law.
The customer is liable for ensuring that the services, materials, documents, etc. provided by him are free of third party rights and indemnifies and holds Inscript harmless in this respect. Claims for damages against Inscript become time-barred within six months after acceptance.
If a permanent service (e.g. hosting of a website) is agreed upon, the first period of use begins with the date of the first provision of the service. It shall extend for a period of at least six months to the end of the month. The continuous service can be terminated by the customer at the end of a usage period. Notice of termination must be received by Inscript in writing by registered mail at least one month before the end of the period of use, otherwise the continuous service shall be automatically extended by a further six months in each case.
The right of the parties to terminate the contract prematurely with immediate effect for good cause (extraordinary termination) remains unaffected. Inscript is entitled to do so in particular if the customer is in default with due payments in whole or in part for more than six weeks or if the customer violates an essential provision of this contract and does not cease the violation within ten working days despite a written request or if insolvency proceedings have been legally opened against the customer's assets or if the opening of insolvency proceedings has been legally rejected due to lack of assets.
7. payment, default of payment
The agreed remuneration is due for payment from an order volume of EUR 3,000.00 as follows: 1/3 upon order placement, 1/3 upon layout or concept acceptance and 1/3 upon acceptance. Invoices are payable immediately without any deductions. A warranty retention is excluded. Payments must be made free of costs and charges to Inscript's bank accounts indicated on the invoice. If the customer is in default of payment in whole or in part for more than ten days, if he allows bills of exchange or checks to be protested, or if an application is made to open insolvency proceedings against his assets, Inscript is entitled, without prejudice to other rights, to declare all claims against the customer immediately due and payable, to withhold all deliveries or services, and to assert all rights arising from the retention of title. Inscript is furthermore entitled to claim the statutory default interest as damage caused by delay. The assertion of a higher damage incurred by Inscript remains unaffected.
Inscript is entitled to withhold or take back the delivery/service or the further performance of the same in case of late or incomplete payment. This includes in particular the right to shut down a website that has already gone live. The customer can only declare a set-off against claims of Inscript if his claim is undisputed or legally binding. The customer can only assert a right to refuse performance and a right of retention if Inscript's claim for payment and the customer's counterclaim are based on the same contractual relationship.
8. retention of title
To the extent permitted by law according to the type of delivery/service, Inscript retains title to the deliveries and services until full payment has been made.
9. customer's duty to cooperate
The customer is obligated to provide required permits, documents, releases, own services as well as other obligations in a timely and complete manner and to provide Inscript with all information necessary for the performance of the deliveries and services. The customer is further obligated to inform Inscript, also without being requested to do so, of circumstances which are significant for the performance of the deliveries and services and of which the customer can recognize that they are unknown to Inscript.
Insofar as Inscript and the customer define joint development stages, the customer is obligated to provide all necessary cooperation to comply with these stages. The acceptance and release of the development stages shall be made in writing. If the customer requests changes to the defined development stages, Inscript is entitled to accept these changes only under agreement of an additional compensation. If such an accepted change (recalculation) results in a delay of the deadlines, Inscript will inform the customer immediately. Inscript is entitled to terminate the contract with immediate effect if the customer does not comply with a duty to cooperate after setting a reasonable deadline with a threat of refusal. In the event of termination, Inscript is entitled to charge for all work incurred up to that point on a time and material basis according to the list of hourly rates.
10. rights to the services of Inscript
Under the condition of full payment of the agreed upon remuneration, Inscript transfers the unlimited, non-exclusive and non-transferable right of use to the customer upon acceptance of the delivery/service.
There may be restrictions for services purchased by Inscript for the customer, especially word, music, image or artistic performance. These will be made known to the customer. The customer is obligated to observe these restrictions.
The customer is not entitled to process, change or distribute the delivery or performance in parts or as a whole, unless this has been expressly agreed. The customer is not entitled to reproduce the delivered software in parts or as a whole on hard disk or similar storage media or to feed it into publicly accessible data networks, unless this would be expressly agreed. The originals of the documents used for the production (e.g. exposés, treatments, drawings, plans, graphics, prototypes, etc.) as well as all preliminary stages to the finished delivery or service as well as the rights thereto remain the property of Inscript.
These terms and conditions and the contract are subject to substantive Austrian law. The UN Convention on Contracts for the International Sale of Goods shall not apply. For disputes with customers who are domiciled within the EU/EFTA, Dornbirn shall be the place of jurisdiction. For disputes with all other customers, the jurisdiction of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna shall be agreed in accordance with the Vienna Rules. Place of arbitration is Dornbirn. The language of arbitration shall be German. As long as the court or arbitration court having jurisdiction according to the above provisions has not been seized in a dispute, Inscript is entitled to bring this dispute before any other court having jurisdiction over the customer.
Subsidiary agreements, amendments and supplements must be in writing in order to be effective. This also applies to any waiver of this formal requirement. In case of invalidity or unenforceability of provisions of the contract, the validity and enforceability of the remaining provisions shall remain unaffected. The invalid or unenforceable clause shall be replaced by a valid or enforceable clause which economically and in its intention comes closest to the invalid or unenforceable clause.