Terms and Conditions
1. General
1.1 The GTC apply to all (service) agreements that divrent OG, Donaustadtstraße 13/1/4, 1220 Vienna, FN 612096 t (short "divrent") provides to the contracting party or client. The version of the GTC valid at the time of contract conclusion is decisive.
1.2 The GTC also apply to future transactions between the contracting parties, even if not explicitly referred to again in future contract conclusions. The GTC constitute a framework agreement in this respect. Unless expressly agreed otherwise, the client agrees that any general terms and conditions of the client will not apply, even if they remain uncontested by divrent.
1.3 The mutual rights and obligations of the contracting parties are determined exclusively by these GTC and the content of agreements signed by divrent in accordance with the company's practices and in writing. Oral side agreements do not exist. Any changes and/or additions to the order require written form.
1.4 If divrent arranges services of third parties at the request of the client, these contracts are concluded exclusively between the client and the third party under the respective terms and conditions of the third party. divrent is only responsible for services provided by divrent itself, unless a general contractor relationship on the part of divrent has been expressly promised.
1.5 divrent is entitled, at its own discretion, to either perform the work itself, use third parties/subcontractors to provide the contractually agreed services, and/or replace them.
2. Scope of Services
2.1 The scope of the services to be provided by divrent is based on agreements signed by divrent in accordance with company practices and any written supplementary agreements (collectively referred to as "service description"), so any information in other documents is only relevant if divrent explicitly refers to it. Unless otherwise agreed, divrent provides the services during divrent's usual business hours.
2.2 The basis for the systems and technologies used by divrent for service provision is the service requirement of the client, as determined based on the information provided by the client. divrent is free to choose the systems and technologies used unless otherwise agreed.
2.3 The basis for all services (especially web design and web development) is the service description, which the client must check for accuracy and completeness.
2.4 If the services provided by divrent involve the programming of websites, web applications, or software, the client - unless expressly agreed otherwise - has no claim to the release of the source code.
2.5 The following points are generally not included in the services and require explicit
and separate agreement:
• Services outside divrent's usual business hours;
• Analyzing malfunctions and errors attributable to the client or other circumstances not
attributable
to divrent.
2.6 Binding changes to the service description require a written agreement that must include a detailed description of the change.
2.7 Deadlines and dates for timely service provision are only effective if agreed in writing. In the event of default by divrent, the client must grant divrent a reasonable grace period upon receipt of a corresponding written notice. The consequences of default only occur after the fruitless expiration of this grace period.
2.8 Maintenance work and updates for what divrent has created or adjustments to other services already provided by divrent are explicitly not included in the scope of services. Contracts for maintenance work are agreed separately.
2.9 divrent expressly points out that an accessible design (of websites) within the meaning of the Federal Act on the Equal Treatment of Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz – BGStG) is not included in the offer unless specifically/individually requested by the client. If accessible design has not been agreed upon, it is the client's responsibility to verify the performance for its compliance with the BGStG.
3. Prices, Conditions, and Taxes
3.1 The prices and conditions to be paid by the client are in euros excluding value-added tax. If it has been agreed that several units (especially consulting/web designs/development/testing phase/live launch of the website or services that can be realized in stages) are the subject of the contract, divrent is entitled to issue partial invoices. divrent can invoice services provided after each performance (after consulting/ completion of web design/development phase/testing phase and before the live launch of the website). Ongoing service provision (such as agreed maintenance work) can be invoiced quarterly by divrent.
3.2 For services that are not explicitly the subject of the contract or for additional services desired or required by the client, the effort will be invoiced at the rates valid on the day of service provision by divrent, unless agreed otherwise.
3.3 For service provision outside divrent's usual business hours, divrent - regardless of whether service provision outside regular business hours has been agreed as the subject of the contract - charges a surcharge of 50% on the agreed rates or, in the absence of an agreement, on the rates valid on the day of service provision by divrent.
3.4 In the event of late payment or a significant deterioration in the financial situation of the client, divrent is entitled to make the provision of services dependent on (further) advance payments or the provision of other securities by the client in an appropriate amount.
3.5 If the client is in default with payments, divrent is entitled to charge commercial default interest at a rate of 9.2% above the base rate and all costs necessary for collection. If the client's default exceeds 30 days, divrent is also entitled to discontinue all services, make the remuneration for all services already provided due immediately regardless of any payment deadlines, and terminate the contractual relationship in accordance with point 5.
3.6 Delays in service provision by divrent and cost increases resulting from incorrect, incomplete, or subsequently changed information and documents provided by the client are not attributable to divrent and cannot lead to default in the provision of services by divrent. The client bears any resulting additional costs.
4. Rights and Obligations
4.1 General Rights and Obligations of the client and divrent
4.1.1 The client must review his project and the content he provides for its legal, especially competition, trademark, copyright, and administrative law compliance. Should divrent utilise the services of third parties, the client shall indemnify and hold divrent harmless.
4.1.2 divrent is not obligated to check the accuracy and completeness, especially the legal compliance regarding competition, trademark, copyright, and administrative law, of documents and information provided by the client. divrent reserves the right to make separate scheduling and pricing agreements with the client for subsequent change requests.
4.1.3 divrent is entitled to change the systems and technologies used to provide the services at its discretion.
4.1.4 Created websites or software require acceptance by the client within two weeks of completion. The client agrees to confirm acceptance in a protocol. If the client lets the two-week period pass without acceptance, the website or software is considered accepted with the end date of that period. If the website or software is used in real operation by the client, it is considered accepted in any case.
4.1.5 If a change to the service description or the technology used is necessary or desired, divrent will provide a further binding offer upon the client's request, and in case of impossibility of execution according to point 7.5, the procedure will be followed.
4.1.6 Upon termination of the contract, the contracting parties must promptly return all documents and documentation provided by the other contracting party to each other. If divrent agrees, physical return can be replaced by written confirmation that the respective documents have been irrevocably deleted.
4.1.7 Any resulting tax liabilities and fees, such as transaction fees or withholding taxes, are borne by the client. If divrent is claimed for such taxes or fees, the client will promptly reimburse divrent upon first request.
4.2 The client's Cooperation and Provision Obligations
4.2.1 The client undertakes to support all measures necessary for the unimpeded start and timely provision and completion of services by divrent and for the fulfillment of the contract. This includes support by third parties brought in by divrent. Unless otherwise agreed, the client's support and provisions are free of charge.
4.2.2 The client will provide all information, data, and documents required by divrent for the execution of the order in the form requested by divrent at the agreed-upon times.
4.2.3 Upon request, the client will assist divrent in problem analysis, troubleshooting, and coordination of services.
4.2.4 The client will additionally keep all data and information handed over to divrent so that they can be reconstructed in case of loss or damage.
4.2.5 The client will fulfill all cooperation obligations in a timely manner to ensure that divrent is not hindered in the provision of services.
4.2.6 If the client does not fulfill its cooperation obligations at the agreed-upon times or to the required extent, the services provided by divrent are still considered contractually fulfilled despite possible limitations.
5. Duration and Termination
5.1 Unless otherwise agreed, contracts concluded with divrent are concluded for an indefinite period.
5.2 Contracts between divrent and the client, with the exception of contracts for maintenance work as per point 2.7, can be terminated separately by either contracting party with a notice period of 1 month to the end of a calendar month, but not earlier than the end of any agreed minimum term.
5.3 Contracts for maintenance work as per point 2.7 are, unless otherwise agreed in individual cases, concluded for a minimum term of 1 year. The minimum term begins on the day the contract is concluded. The maintenance contract can be terminated with a notice period of 1 month to the end of a calendar month.
5.4 The termination must be made in writing (email is sufficient) to the last address provided by the respective contracting party. The date of receipt is decisive for timeliness.
5.5 In the event of a material reason, divrent can terminate the contractual relationship with the client prematurely and without notice by registered letter. A material reason exists for divrent, in particular, if a) the client, despite written warning with a grace period and threat of termination, does not fulfill its cooperation and provision obligations (cf. point 4.2), b) the client does not pay due invoices in a timely manner and is in default for 30 days, c) insolvency proceedings are applied for, opened, or rejected for lack of assets against the client, or d) essential parameters of the service provision have changed, and divrent can no longer reasonably continue the services for economic reasons.
6. Cancellation
6.1 Cancellations by the client are only possible with the written consent of divrent.
6.2 If divrent agrees to a cancellation, divrent has the right to charge a cancellation fee of 30% of the remaining contract value of the entire service, in addition to the services provided and incurred costs.
7. Service Disruptions and Disclaimer
7.1 A defect regarding websites/web designs or software or other services exists only if there is a reproducible deviation in functionality from the contractually agreed upon or the agreed-upon service description. Such deviation must have been present at the time of acceptance, or if acceptance is absent, must have been present during service provision and significantly impairs usage. Malfunctions due to defects in the client's environment (hardware, operating system, client's or third-party software, inputs) are not considered defects in the services provided by divrent.
7.2 The client is only entitled to refuse acceptance in case of significant defects in websites/web designs or software or other services subject to acceptance. Significance exists if, due to the stated deviation, usage cannot reasonably be expected by the client regarding the intended goal and purpose according to the service description, and live operation cannot begin or continue.
7.3 If the defectiveness is based on a violation of the client's cooperation and/or provision obligations or other actions or interventions by the client, such as improper installation, unauthorized work material, installation of unauthorized software (tools, versions, etc.), unauthorized access, or changed operating conditions, the services provided by divrent are considered contractually fulfilled despite possible limitations.
7.4 Deviations from the written agreement or the service description must be reported by the client to divrent immediately after acceptance of the service provision. If live operation cannot begin or continue due to deviations or existing defects, divrent must be notified immediately, and, at the client's request, a further binding offer or a renewed acceptance by the client is required in the case of defect rectification.
7.5 If, during the provision of services, it becomes apparent that the execution according to the service description is factually or legally impossible, divrent will notify the client. If the client does not change the service description in agreement with divrent so that execution becomes possible, divrent is authorized to refrain from execution and is not obliged to provide further services. The client must reimburse divrent for services already provided, including incurred costs.
7.6 A prerequisite for any error or defect rectification is that the client adequately and specifically describes defects in an "error report." The client or third parties must not have made any interventions, and the contractually agreed-upon, intended use must be present. Defects must be reported to divrent by the client in writing or by email as far as they are detectable through reasonable investigations. Furthermore, the client will assist divrent in error or defect rectification and provide all necessary information. The client bears the additional costs resulting from a delayed report.
7.7 Upon receipt of an error report/defect complaint, divrent is entitled to either provide instructions for simple error rectification or take other suitable measures for simple error rectification, such as sending data carriers or information sheets allowing error rectification. If this is not successful, divrent may, at its discretion, repeat the affected services or carry out the necessary improvement work within a reasonable period. Multiple rectifications are permissible. As long as divrent takes the measures described above for defect rectification and rectification is possible, the client is not entitled to demand a price reduction or rescission of the contract.
7.8 The client must prove that the defect existed at the time of handover. Additionally, the client bears the full burden of proof for all prerequisites for claims, especially for the defect itself, the time of defect discovery, and the timeliness of the defect complaint. For any third-party hardware or software products provided to the client by divrent, the respective warranty conditions of the manufacturer/supplier of these products take precedence.
7.9 Assistance and other corrections, changes, and additions necessary in the client's sphere are carried out by divrent for a fee.
7.10 The application of § 934 ABGB regarding indemnification for a reduction by more than half is mutually excluded. Moreover, any warranty and compensation claims of the client, regardless of the legal grounds, exceeding those mentioned in this contract, are excluded.
8. Force Majeure
8.1 To the extent that obligations cannot be fulfilled in a timely or proper manner due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, government intervention, power supply failure, failure of transportation means, failure of telecommunication networks or data lines, legislative changes affecting services after contract conclusion, or other unavailability of products, this does not constitute a breach of contract.
8.2 The provisions of point 8.1 also apply in the case of government measures related to the containment of the spread of diseases, provided that these measures lead to divrent's services not being fulfilled in a timely or proper manner.
8.3 In the event of actual or legal impossibility of service provision as per point 7.5, the client will grant divrent a new determination of the fulfillment period, or the client can proceed according to its own discretion.
9. Offset, Assignment Prohibition, and Right of Retention
9.1 The Customer is not entitled to withhold payments due to warranty claims or other claims of any kind, nor to set off against counterclaims unless these have been expressly acknowledged in writing by divrent or established by a legally binding judgment.
9.2 The Customer is not entitled to assign or transfer its rights and obligations from contracts concluded with divrent to third parties.
9.3 Justified complaints do not entitle the Customer to retain the entire amount but only an amount corresponding to the anticipated costs of rectifying the defect, limited to the part of the invoice amount related to the invoiced defects.
10. Limitation of Liability
10.1 Liability for slight negligence and – regardless of the degree of negligence – compensation for consequential damages, financial losses, damages due to business interruptions, lost profits, data loss, and damages from third-party claims against the Customer, etc., are excluded; this does not apply to personal injury. The injured party must prove gross negligence.
10.2 Claims for damages shall be time-barred no later than 6 months after the Customer becomes aware of the damage and the damaging party, but in any case no later than three years after the conclusion of the contract, in the case of long-term contracts, no later than three years after the provision of the affected service.
10.3 divrent is not liable to the Customer for the legal admissibility of content provided by the Customer.
11. Intellectual Property Rights
11.1 The Customer acquires a non-exclusive, non-transferable, and non-sub licensable right to use designs, software, or other intellectual property-protected services created by divrent for the Customer. Unless otherwise agreed, this right is granted for the duration of the contract. The Customer is not allowed to distribute copies thereof. The Customer is entitled to make reproductions for its own/internal use only if divrent explicitly grants its consent. Copyright and ownership notices must remain unchanged in these reproductions/copies; in the absence of such notices, it must be appropriately indicated that reproductions/copies originate from divrent.
11.2 The Customer does not acquire rights through its participation in the creation of websites/web designs or software.
11.3 In all cases, the Customer shall not be granted further rights without a separate written agreement. Any unauthorized transfer, even in the event of the dissolution of the Customer's business or bankruptcy, as well as the temporary transfer for reproduction purposes and other copyright infringements, result in claims for damages. In such a case, full satisfaction must be provided.
11.4 All documents provided by divrent to the Customer may not be reproduced or distributed in any way, whether for a fee or free of charge.
11.5 Unless expressly agreed otherwise, all promised usage rights shall be transferred to the Customer only after complete payment of the agreed and invoiced fee.
12. Data Protection
12.1 divrent will comply with the provisions of data protection laws and telecommunications laws when handling personal data and will take the necessary technical and organizational measures for data protection within divrent's responsibility.
12.2 divrent is not obliged to check the admissibility of data processing ordered by the Customer in terms of data protection regulations. The Customer is responsible for ensuring the permissibility of the transfer of personal data to divrent and the processing of such data by divrent. The Customer holds divrent harmless in this regard.
12.3 divrent takes all reasonable measures to protect the data and information of the Customer stored at divrent locations against unauthorized access by third parties. However, divrent is not responsible if third parties still manage to gain unauthorized access to the data and information through unlawful means.
12.4 The Customer agrees that data may also be transmitted to subcontractors involved in the processing. Furthermore, divrent is allowed to mention the name of the Customer as well as a brief project description for reference purposes (in brochures, on the website, etc.) until revoked.
13. Confidentiality
13.1 Each contracting party assures the other to treat all information and trade secrets disclosed by the other in connection with the contractual relationship and its implementation as confidential and not to disclose them to third parties, unless they are to be disclosed by official or judicial decision.
13.2 divrent undertakes to treat all data and information that has been disclosed by the Customer during the contract period confidentially and to protect it from third-party access/knowledge.
14. Final Provisions
14.1 The place of performance is the registered office of divrent.
14.2 Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods, referral norms, and international private law, applies to the contractual relationship with divrent. The competent court at the registered office of divrent is agreed upon as the place of jurisdiction.
14.3 The invalidity of any part of these terms and conditions does not affect the validity of the remaining provisions. In place of the ineffective provisions, those that come closest to the intended provisions shall apply.