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General terms and conditions of business
As of December 4, 2024
GENERAL TERMS AND CONDITIONS FOR BUSINESSES (B2B)
1. VALIDITY
1.1. These General Terms and Conditions apply exclusively to all contracts concerning services, deliveries, and other performances concluded between Inpro Analytics GmbH (hereinafter referred to as "Contractor") and a contractual partner. Any deviations from these terms shall only be deemed agreed upon if they have been agreed upon in writing between the Contractor and the contractual partner.
1.2. These terms and conditions also apply to all future deliveries, services or offers with the contractual partner, even if these are not separately agreed upon again.
1.3. General terms and conditions or other terms of service or sale of contractual partners, which may be cited, for example, in offers or other correspondence of the contractual partner, shall not become part of the contract with the contractor unless the contractor has agreed to them in writing beforehand. If, in a specific case, the application of deviating agreements is agreed to in writing, the deviations shall apply exclusively to that individual transaction.
1.4. The currently valid version of these General Terms and Conditions can be viewed and accessed at any time on the internet at https://www.inpro-analytics.at/agb-gmbh and is also available for download there or can be sent upon request.
2. CONCLUSION OF CONTRACT
2.1. All information provided by the contractor to the contractual partner regarding the services offered is non-binding and subject to change.
2.2. Binding offers from the contractor can only be accepted by the contracting party in writing within the respective offer period.
2.3. Unless otherwise agreed in writing, documents relating to the contractor's respective services, such as performance specifications, etc., do not constitute specifically guaranteed characteristics.
2.4. Any offers made by the contractor can only be accepted with regard to the entire scope of services offered. If the acceptance declaration of the contracting party deviates from the contractor's offer, this deviating acceptance declaration of the contracting party constitutes a new offer which the contractor may accept.
3. PRICES
3.1. The prices apply to the scope of services and delivery specified in the respective contract. Orders for deliveries or services exceeding the scope defined in the contract (in particular, additional or special services) will be invoiced separately.
3.2. All prices are in euros. Unless expressly agreed otherwise in writing, prices are not to be understood as fixed prices.
3.3. Unless otherwise stated by the contractor, all prices quoted are exclusive of all duties and taxes, in particular statutory value-added tax and any applicable import duties, as well as any shipping costs, travel expenses, and other out-of-pocket expenses. Any applicable duties, taxes, and shipping costs will be invoiced separately.
3.4. All prices are based on the assumption that the services can be performed continuously, without hindrance or interruption. Additional costs incurred due to hindrances or interruptions to the continuous process, for which the contracting party or a third party attributable to the contracting party is responsible, will be invoiced to the contracting party separately.
3.5. For deliveries and services, the contractual partner must provide the contractor with their VAT identification number (VAT ID number). If the contractual partner fails to provide the VAT ID number, provides an incorrect VAT ID number, misuses the VAT ID number, or if the goods are not exported to another EU country, they are liable to the contractor, without prejudice to any further claims, in particular for the payment of Austrian VAT at the statutory rate.
3.6. If the contracting party unilaterally modifies or terminates commissioned services without involving the contractor – notwithstanding any ongoing support provided by the contractor – the contracting party shall compensate the contractor for the services rendered up to that point in accordance with the agreed fee and reimburse all incurred costs. If this termination is due to a breach of duty by the contracting party, the contracting party shall also reimburse the contractor for the entire fee agreed for this order, whereby the conditions for offsetting under Section 1168 of the Austrian General Civil Code (ABGB) are fully excluded. Furthermore, the contracting party shall indemnify and hold harmless the contractor against any claims by third parties arising from a modification or cancellation of the commissioned services attributable to the contracting party, in particular by the contractor's subcontractors. Payment of the fee does not grant the contracting party any rights of use to services already rendered but not yet fully performed. Unexecuted concepts, drafts and other documents must be returned to the contractor immediately, unless expressly agreed otherwise.
4. PAYMENT TERMS, DEFAULT INTEREST, PARTIAL INVOICES, LATE DUE, RETENTION OF TITLE
4.1. The contractor's respective fee is due upon invoicing, unless special payment terms are agreed upon in writing in individual cases. The contractor is entitled to immediately invoice all cash outlays to the client.
4.2. The goods delivered by the Contractor remain the property of the Contractor until full payment of the agreed price, including all ancillary charges, has been received. The Contractor has no right of retention with respect to (partial) performance vis-à-vis the Contractor. Any sale, pledging, rental, transfer of ownership as security, or other transfer of the reserved property to third parties is prohibited. In the event of seizure or other claim against the reserved property by third parties, the Contractor is obligated to assert the Contractor's ownership rights at its own expense and to inform the Contractor by means of verifiable written notification within 24 hours.
4.3. The assertion of the retention of title by the contractor shall not be deemed a withdrawal from the contract unless the contractor expressly declares otherwise in writing. Rather, the contractor retains, in addition to the right to surrender the goods, the rights arising from the respective contract, in particular the right to compensation for damages.
4.4. In the event of default of payment by the contractual partner, statutory default interest shall apply at the rate applicable to commercial transactions pursuant to Section 456 of the Austrian Commercial Code (UGB). The assertion of further claims, in particular claims for damages, remains unaffected.
4.5. The contractor and the contracting party agree that, in the event that the contracting party fails to properly fulfill its payment obligation, compound interest pursuant to Section 1000 Paragraph 2 of the Austrian Civil Code (ABGB) shall be payable in addition to the statutory default interest.
4.6. The contractor is entitled to demand immediate payment and to execute or provide outstanding deliveries and services only against prepayment or security as soon as circumstances become known which are likely to significantly impair the creditworthiness of the contractual partner and which appear to jeopardize the payment of the contractor's outstanding claims by the contractual partner arising from the respective contractual relationship.
4.7. In the event of default of payment by the contractual partner, the contractor is entitled to invoice all services and partial services rendered, including those under other contracts concluded with the contractual partner, and to demand immediate payment. Furthermore, the contractor is not obligated to provide any further services until the outstanding amount has been paid and is entitled to demand advance payment or security for services and deliveries yet to be rendered, or, after setting a reasonable grace period, to withdraw from the contract. The contractual partner's obligation to pay remains unaffected.
4.8. If payment in installments has been agreed, the contractor reserves the right, in the event of late payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (acceleration of payment).
4.9. The contractual partner is not entitled to offset its own claims against claims of the contractor, unless the contractual partner's claim has been acknowledged in writing by the contractor or has been legally established by a court.
4.10. Any discounts (rebates, rebates, cash discounts) granted by the contractor shall also be forfeited retroactively in their entirety for the entire contract if the contractual partner defaults on any payment of even a partial, final or other invoice.
4.11. The use of discounts requires that they have been expressly agreed upon in writing and have not already expired as previously stipulated. A discount on the final invoice is only permissible if all previous partial invoices have been paid on time. A discount on partial invoices is only permissible if such a discount is noted on the invoice.
4.12. Unlawfully made price reductions by the contractual partner will also lead retroactively to the loss of the entire discount and all other price reductions for the entire order or partial services.
4.13. Partial deliveries/services may always be invoiced separately. The payment terms stipulated for the overall order apply equally to partial invoices.
4.14. In the event of late payment of partial invoices, the entire outstanding amount becomes due immediately after a grace period of at least one week has been granted.
4.15. The contractor is entitled to send invoices to the client electronically (in particular by email) to an address provided by the client. The client expressly agrees to receive invoices electronically.
5. DELIVERY AND PERFORMANCE, CHANGES OF DATE, CANCELLATIONS
5.1. The contractor will make every effort to adhere to performance and delivery deadlines and dates. Unless expressly agreed upon as binding, these are non-binding and always refer to the anticipated time of provision and handover to the contractual partner.
5.2. The contractor is entitled to postpone agreed performance and delivery dates or extend deadlines for performance if compliance with the deadlines becomes impossible or unreasonably difficult for the contractor and the circumstance is beyond the contractor's control. This applies in particular to labor disputes, fire, war, strikes, pandemics, natural disasters, etc. This also applies if such unforeseen obstacles and circumstances arise at subcontractors or agents.
5.3. If circumstances beyond the contractor's control prevent the contractor from fulfilling all outstanding orders on time (objective delay), the contractor is not obliged to use external services.
5.4. The contracting party is obliged to accept the deliveries and services provided by the contractor on the agreed date.
6. SCOPE OF SERVICES, ORDER PROCESSING AND OBLIGATIONS OF THE CONTRACTING PARTNER TO COOPERATE
6.1. The scope of services to be provided is defined in the service description in the contract with the client or in any offer, possibly based on a non-binding cost estimate from the contractor. Subsequent changes to the scope of services require written confirmation from the contractor. Within the framework specified by the client, the contractor has discretion in fulfilling the order.
6.2. All services provided by the contractor (in particular all preliminary drafts, electronic files, or other documents required for the performance of the services, etc.) must be reviewed by the client and approved within five working days of receipt. If the client fails to respond within this period, the services will be deemed approved.
6.3. The contracting party shall provide the contractor with all information, documents, and data necessary for the performance of the services and delivery in a timely, complete, and continuous manner. The contracting party shall inform the contractor of all circumstances relevant to the fulfillment of the contract, even if these circumstances only become known during the execution of the contract. The contracting party shall bear any costs incurred by the contractor as a result of work having to be repeated, adapted, or delayed due to incorrect, incomplete, or subsequently changed information provided by the contracting party.
6.4. The client is further obligated to check the data provided for the execution of the order (e.g., photos, logos, etc.) for any copyrights, trademarks, registered designs, or other third-party rights (rights clearance) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The contractor is not liable – at least in its internal relationship with the client – for any infringement of such third-party rights by documents provided by the client, even in cases of slight or gross negligence or after fulfilling its duty to warn. If the contractor is held liable by a third party for such an infringement, the client is obligated to fully indemnify and hold the contractor harmless; the client must reimburse the contractor for all disadvantages arising from any third-party claims, in particular the costs of reasonable legal representation. The client undertakes to support the contractor in defending against any third-party claims. The client shall provide the contractor with all relevant documents for this purpose without being requested to do so.
6.5. The contracting party shall ensure that the organizational framework conditions at the contractor's place of business allow for work to be carried out as undisturbed as possible, conducive to the rapid progress of the consulting process.
6.6. The Contractor may, at its sole discretion, perform the services for the Client in whole or in part itself, engage qualified third parties as subcontractors in the performance of the services under this Agreement in whole or in part, and/or substitute such services in whole or in part ("External Services"). The engagement of third parties for External Services shall be carried out either in the Contractor's own name or in the name of the Client. The Contractor shall carefully select these third parties and ensure that they possess the necessary professional qualifications. The Client shall assume any obligations to third parties that extend beyond the term of this Agreement. This expressly applies even in the event of termination of the Agreement with the Contractor for cause.
7. RIGHTS (INTELLECTUAL PROPERTY ETC.)
7.1. The contractual partner is granted the right to exploit the delivered works and services only within the scope of the order described in the contract.
7.2. Unless otherwise agreed, the Contractor retains all rights and uses to the works delivered, documents created (in particular drafts, concepts, strategies), and services rendered. The Contractor therefore holds, in particular, all proprietary and intellectual property rights to the services created within the scope of the contract. The Contractor therefore retains the irrevocable, exclusive, and unlimited right of use, both temporally and geographically, to the aforementioned services – with the exception of the Contracting Party's rights pursuant to Section 7.1. Furthermore, the Contractor is entitled to transfer its rights to third parties, grant sublicenses, and authorize the use of the works.
7.3. The contracting party is only entitled to use the contractor's documents and works for the purposes covered by the contract. In particular, the contracting party is not entitled to reproduce and/or distribute the contractor's property without the contractor's express consent.
7.4. If the contractual partner violates the provisions mentioned in points 7.2 and 7.3, the contractor is entitled to terminate the contractual relationship immediately and prematurely, as well as to assert other legal claims, in particular for injunctive relief and/or damages.
7.5. The contractor is entitled to refer to itself and, where applicable, to the author on all advertising materials and in all advertising measures, without the contractual partner being entitled to any compensation. Subject to the contractual partner's right to revoke this authorization at any time in writing, the contractor is entitled to refer to the existing or former business relationship with the contractual partner on its own advertising media and, in particular, on its website, using its name and company logo (reference notice).
8. WARRANTY, NOTIFICATION OF DEFECTS
8.1. Special or guaranteed characteristics only become part of the contract if they have been agreed upon in writing.
8.2. The warranty period is 12 months.
8.3. No warranty is given for minor deviations, such as color nuances, as well as for minor deviations from samples and/or dimensions, and the contractual partner is not entitled to reject the goods/service, demand a price reduction or the cancellation of the contract due to error or for any other reason.
8.4. Upon delivery or performance of services, delivered goods or services are deemed to be handed over and accepted by the contractual partner.
8.5. Notices of defects must be submitted by registered letter within 14 days of delivery or acceptance of the service or partial service, specifying the defects in detail. The contractor has the right to inspect the deliveries and services objected to by the client with regard to the alleged defects after the notice of defects has been received. If the client refuses the inspection, they forfeit all associated warranty and damage claims.
8.6. The existence of defects must be proven by the contractual partner. The presumption of defectiveness at the time of delivery (performance) pursuant to Section 924 of the Austrian Civil Code (ABGB) is expressly excluded. The contractual partner must always prove that any defect that may arise already existed at the time of delivery (performance).
8.7. The contractual partner may not refuse acceptance due to insignificant defects.
8.8. The warranty excludes defects arising from negligent, incorrect, or improper handling of the services by the contractual partner or from similar external influences. This applies in particular if defects are attributable to incorrect data provided by the contractual partner.
8.9. In the event of a defect, the contractor may choose whether to remedy it by improvement or replacement.
8.10. If remedying a defect or replacing the item is impossible or would entail disproportionate expense, the contractor may refuse to do so. In this case, the contractual partner may only demand a price reduction. Furthermore, the warranty remedy of rescission is hereby expressly waived.
8.11. The contractual partner is under no circumstances entitled to withhold the agreed fee or a proportionate share of the fee or purchase price corresponding to the anticipated costs of remedying the defect.
8.12. If the Contractor performs services with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor assigns these claims to the Contracting Party. In this case, the Contracting Party shall primarily pursue these claims against the third parties.
8.13. Section 933b of the Austrian Civil Code (ABGB) does not apply.
9. LIABILITY, DISCLAIMER
9.1. The contractor is liable for damages in all applicable cases only in the event of intent or gross negligence. The contractor's liability is excluded in cases of slight negligence and other forms of gross negligence. In cases of slight negligence and other forms of gross negligence, the contractor is liable only for personal injury. This also applies analogously to liability for the conduct of third parties whom the contractor uses to fulfill contractual obligations.
9.2. The contractor shall not be liable for indirect damages, lost profits, lost interest, lost savings, consequential and pecuniary damages, damages arising from third-party claims, or for the loss of data and programs and their recovery, unless the damage/defect is due to gross negligence or intent.
9.3. Regardless of the cause and legal basis of the damage, the contractor's liability is limited to the coverage amount of the contractor's liability insurance or, if damage is not covered by this insurance, to 50% of the amount of the fee of the respective contract, but in the case of a continuing engagement, a maximum of 50% of the annual fee of the respective contract for the year in which the damage occurred.
9.4. Claims for damages against the contractor must be asserted in court within six months of the contractual partner becoming aware of the damage and the identity of the liable party or of any other event giving rise to the claim, but no later than three years after the event (conduct) causing the damage (giving rise to the claim), otherwise the claim will be forfeited. The burden of proof for the existence and amount of the damage lies with the contractual partner.
9.5. The foregoing exclusions and limitations of liability shall apply to the same extent in favor of the contractor's employees and other agents.
9.6. See also point 6.4.
10. RESIGNATION / TERMINATION
10.1. Irrespective of any other rights, the Contractor shall in particular be entitled to withdraw from or terminate the contract if (i) the Contracting Party breaches its obligations under this contract, in particular its payment obligations or its cooperation obligations, despite being granted a grace period of 14 days and fails to restore the contractually compliant condition, (ii) the execution of the delivery or the commencement or continuation of the service becomes impossible or is further delayed despite a reasonable grace period for reasons attributable to the Contracting Party, or (iii) the service to be provided by the Contractor becomes impossible or uneconomical for the Contractor as a result of circumstances beyond the Contractor's control.
10.2. If a continuing obligation is concluded, the contractor may terminate it at any time without notice, irrespective of any agreed fixed term, if there is good cause. Good cause includes, in particular: (i) the breach of the contractual partner's obligations under this contract, especially payment obligations or obligations to cooperate; (ii) the loss of confidence in the contractual partner if the execution of the delivery or the commencement or continuation of the service becomes impossible or is further delayed despite the setting of a reasonable grace period for reasons attributable to the contractual partner; (iii) if the service to be provided by the contractor becomes impossible or uneconomical for the contractor due to circumstances beyond the contractor's control.
10.3. The contractor expressly reserves the right to assert further claims.
10.4. The contractual partner may only withdraw from the contract due to a delay in delivery after setting a reasonable grace period of at least four weeks. Withdrawal must be declared by registered letter. The right of withdrawal applies only to the delivery or service component that is delayed. In all other cases, withdrawal from the contract is only possible for good cause.
10.5. Without prejudice to any further claims, the contractor is entitled, in the event of justified withdrawal or termination by the contractual partner, to invoice for services or partial services already rendered. This also applies if the delivery or service has not yet been accepted by the contractual partner. Alternatively, the contractor also has the right to demand the return of goods already delivered or services already rendered.
10.6. In the event of a justified withdrawal from the contract by the client, the client is entitled in all cases to demand a contractual penalty of 15% of the gross invoice amount, without proof of actual damages and regardless of fault. The contractor reserves the right to claim further damages and other claims.
10.7. If the contractual partner unjustifiably withdraws from or terminates the contract, the contractor has the option of demanding performance of the contract or damages for non-performance. In the latter case, the contractual partner is obligated, at the contractor's discretion, without proof of actual damages and regardless of fault, to pay a contractual penalty of 15% of the gross invoice amount or compensation for the actual damages incurred. If the contractor demands performance of the contract, they are entitled to claim any damages related to the unjustified withdrawal from or termination of the contract. In any case, the contractor reserves the right to assert any other statutory and contractual claims against the contractual partner to which they are entitled.
11. CONFIDENTIALITY, PUBLICATION
11.1. The contracting party undertakes to use all information, data, calculations, reports, and programs provided to it solely for this project and to keep them confidential otherwise. The contracting party is also responsible for ensuring that its employees and any third parties involved in the project on its behalf comply with this confidentiality agreement.
11.2. The contractor is entitled to reference or publish services provided for the contracting party, naming the contracting party, in particular to promote itself or its services.
11.3. The contractor is further entitled to use the contractual partner's company logo for advertising and marketing purposes in print and online media. This right of use can be revoked by the contractual partner at any time.
12. APPLICABLE LAW / JURISDICTION / PLACE OF PERFORMANCE
12.1. Austrian substantive law applies, excluding its conflict of laws rules. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
12.2. For all disputes arising from this contract, including the question of the valid conclusion of the contract and its effects, the exclusive jurisdiction of the locally and materially competent court at the contractor's place of business is agreed.
12.3. The place of performance for deliveries and services of the contractor is in all cases the registered office of the contractor.
13. FINAL PROVISIONS
13.1. Amendments or additions to a contract must be in writing. This also applies to any amendment of this written form requirement.
13.2. The contracting party is obliged to inform the contractor of any changes to its business and/or email address; otherwise, declarations by the contractor shall be deemed to have been received if they are sent to the last notified business and email address.
13.3. Should individual provisions of these Terms and Conditions be or become void, unenforceable, and/or invalid, this shall not render the entire Terms and Conditions void, unenforceable, and/or invalid. In such a case, the parties undertake to agree on a provision to replace the void, unenforceable, and/or invalid provision, which most closely approximates the economic purpose pursued by the void, unenforceable, and/or invalid provision. The same applies to any gaps in these Terms and Conditions.
13.4. Changes to the General Terms and Conditions will be communicated to the contracting parties and shall be deemed agreed if the contracting party does not object to the amended General Terms and Conditions in writing within 14 days; the contracting party will be expressly informed of the significance of remaining silent in the notification.
13.5. The contract language is German.