1. Scope of Application

1.1 The General Terms and Conditions for the "eworx Marketing Suite" (GTC), as amended from time to time, shall apply to all services provided by eworx in connection with the "eworx Marketing Suite."

1.2 The eworx General Terms and Conditions (GTC) shall apply to all future transactions, including those that extend beyond the initial delivery or service. This is regardless of whether the customer is explicitly referred to the GTC or not.

1.3 Any general terms and conditions of the customer that conflict with and/or deviate from these GTC are explicitly not recognized. This shall also apply in the event that a customer uses its own general terms and conditions, unless eworx agrees in writing to the inclusion of the third-party general terms and conditions. In the event that special terms and conditions for individual contracts have been agreed upon in writing, these GTC shall apply in addition and shall be used for interpretation.

1.4 Please note that the order confirmation and/or the execution of the order by eworx does not constitute consent to the customer's General Terms and Conditions.

1.5 If the customer is an intermediary, he/she is required to impose these GTC on the end customers and to indemnify and hold eworx harmless for all damages incurred by eworx as a result of the failure to impose these GTC.

 

2. Conclusion of Contract

2.1 All offers from eworx are non-binding.

2.2 Information provided on the website, in catalogs, brochures, and other advertising materials is non-binding and does not form part of the contract unless expressly referred to in the user agreement and/or order confirmation.

2.3 In the event that a customer makes an offer to eworx, a contract is formed either through a written order confirmation or through the customer's execution of the order and/or receipt of the service.

2.4 The content of the user agreement shall be the determining factor in the scope of services covered by the contract. In the absence of a user agreement, the content of the order, order confirmation, and/or invoice shall be decisive. In the event that eworx provides the customer with relevant service descriptions, the content of said descriptions shall also be considered authoritative.

2.5 In the case of individually created software (tools), the customer is responsible for ensuring the flawless technical solution of plans, sketches and designs provided (such as templates in particular) as well as for the correct specification of its technical requirements. The customer shall bear any consequences of incorrect information.

2.6 The customer is responsible for ensuring that the content of the order and/or order confirmation is accurate and complete. Should any deviations from the order placed by the customer arise, they must be reported immediately in writing. Otherwise, the contract shall be concluded with the content confirmed by eworx.

2.7 In order to utilize the services provided by eworx, it is necessary to register and create a user account on the company website, www.eworx.at.

 

3. Fees, Terms of Payment, and Delivery

3.1 Unless otherwise agreed in conjunction with the customer in writing, all fees are to be paid in euros and are exclusive of VAT. The fees in effect on the date of the order will be applied.

3.2 Unless otherwise agreed in writing, eworx reserves the right to charge the customer for any changes to the original order and/or additional orders, including consulting activities, training, individual programming, etc. The fee for the work will be charged at the rate applicable on the day the order is placed. The applicable rates for the work involved will be charged on the day the service is provided. Please note that travel, daily, and overnight allowances will be invoiced separately to the customer at the applicable rates. Please note that travel time shall be considered working time.

3.3 Services and support provided during regular support hours will not be invoiced. Our regular support hours are as followed:
Monday to Thursday: 08:00 to 12:00 and 13:00 to 17:00
Friday: 08:00 to 12:00 and 13:00 to 16:00

3.4. eworx reserves the right to adjust fees in accordance with objective criteria, provided that such adjustments are objectively justified, in particular due to changes in production costs. Any increases or reductions in charges will be communicated to the customer in writing. A change in production costs is deemed to include, in particular, increases in wage costs due to collective bargaining agreements in the industry or other costs necessary for the provision of services (such as those for materials, energy, transportation, external work, financing, etc.).

3.5 Any adjustment to remuneration in accordance with point 3.4 shall constitute an amendment to the GTC. In accordance with Section 15, the aforementioned shall apply.

3.6 It is explicitly agreed that the value of the claim and any related claim shall remain constant. The annual average of the consumer price index (annual CPI) published annually by Statistics Austria or an index replacing it shall serve as the basis for calculating the stability of value, with the annual CPI 2020 forming the index basis.

The adjustment will be made no later than January 31 of each calendar year, in accordance with the change in the annual CPI for the preceding year, as compared to the annual CPI for the year preceding that.

All rates of change are to be calculated to one decimal place. The adjusted fee will be effective in the following month. 

Please note that the CPI adjustment does not entitle the customer to ordinary termination in accordance with points 10 and 11.

3.7. eworx is only obliged to execute the order and/or service upon receipt of full payment, fulfilment of all customer obligations, clarification of all technical and commercial delivery issues, and receipt of all necessary documents.

3.8 In cases where orders include multiple partial steps (such as programs and training courses), eworx is entitled to issue an invoice upon completion of each individual partial step. It is eworx's policy to only provide further partial steps upon receipt of payment for previously invoiced partial steps from the customer.

3.9 Invoices are payable within eight days of receipt, net of any discounts. Bank transfer payments will only be accepted if received in the eworx account.

3.10 The agreed-upon fee is payable on a monthly basis in advance, with the payment deadline being the 5th of the respective month. eworx reserves the right to combine up to three monthly fees into a single invoice for the convenience of our clients.

3.11 Unless otherwise agreed in writing, payment may be made via payment slip, electronic transfer, or SEPA direct debit mandate. In the event that the customer's bank declines to collect the fee, this will be considered an objective delay in payment by the customer.
In such an instance, points 4.1 and 4.2 of this agreement shall apply.

3.12. eworx is not obliged to accept cheques or bills of exchange. In the event of acceptance, the obligation shall only be deemed to have been fulfilled when these documents have been covered and cashed.

3.13 In the event of a substantial decline in the customer's financial standing subsequent to the execution of the contract, eworx reserves the right to demand immediate payment of outstanding but not yet due invoice amounts and/or to request advance payments or guarantees.

3.14. Unless otherwise agreed in writing, employees of eworx are not authorized to accept payments.

3.15. Assignment prohibitions of the customer are explicitly not being recognized.

3.16. Offsetting with counterclaims of any kind is excluded, unless the claim has been expressly recognized by eworx in writing and/or established by court.

 

4. Default

4.1 In case of repeated default of payment by the customer, eworx is entitled to terminate the contract. Section 13.3 shall apply. eworx reserves the right to claim all damages resulting from the default. eworx is in particular entitled to charge, at its discretion, compensation for the actual damage incurred or default interest in the amount of 1% of the invoice amount per month.

4.2 In the event of a default of payment, the customer agrees to reimburse the costs incurred for pursuing the debt, up to the amount necessary for appropriate legal prosecution. In the case of corporate transactions, this shall in any case include a lump sum of EUR 40.00 as compensation for collection costs in accordance with § 458 UGB. The assertion of further rights and claims remains unaffected.

4.3. eworx is entitled to offset incoming payments of the customer first against dunning and collection costs as well as costs of legal or judicial collection, then against the accrued default interest and finally against the outstanding capital.

4.4 If the customer is in default with a partial payment, eworx is entitled to demand immediate payment of outstanding but not yet due invoice amounts and/or to demand advance payments or security deposits.

 

5. Warranty

5.1 Minor technical deviations and/or deviations from a sample (in particular a test version) and/or from a brochure on which the offer and/or the order and/or order confirmation are based, which do not impair the intended use, are irrelevant defects and are deemed to be approved in advance.

5.2 Downtimes due to necessary maintenance and servicing work, such as software updates, do not constitute a defect in performance.

5.3. eworx does not guarantee the constant, complete and error-free availability of the services. Minor disruptions and/or interruptions of the service are irrelevant defects and are considered approved in advance.

5.4 The right to warranty only exists if the defect is reproducible and is reported in written form within 4 weeks after the start of the service or the occurrence and/or emergence of the defect.

5.5 Unless otherwise agreed in writing, eworx does not warrant the interoperability and/or compatibility of its services with other products and/or systems.

5.6. eworx warrants - with the exception of points 5.1 to 5.5 - for any defect that occurs or emerges during the term of the obligation to perform. In the case of legal defects, eworx provides a warranty if the defect exists at the beginning of the service or at a point in time within the duration of the service obligation (warranty period).

5.7 The customer's right under the warranty and the claims resulting from the termination of the contract expire three months after expiry of the warranty period in accordance with point 5.6 (limitation period).

5.8 The obligation to update products with digital elements as well as digital services according to § 7 VGG is excluded, unless otherwise agreed in writing.

5.9. eworx is entitled to choose between restoration of the defect-free condition and - if the defect is minor - a price reduction. A price reduction is only to be granted for the period in which the service was defective.

5.10. In the event of termination of the contract, eworx shall refund the price only for the period in which the service was defective.

5.11. Several (at least three) attempts at improvement to restore the defect-free condition are permitted.

5.12. The warranty period shall not be extended and/or interrupted by attempts to remedy defects.

5.13. Attempts to remedy defects will always be made without acknowledging any legal obligation.

5.14. eworx is not obliged to make attempts to remedy defects as long as the customer has not yet cleared outstanding payments.

5.15. The right to warranty expires immediately if the customer or a third party not authorized by eworx has attempted to remedy defects.

 

6 Compensation and liability

6.1. eworx is not liable for damages caused by unsuitable or improper use, operation and/or installation, omitted program and data backups and/or faulty or negligent handling by the customer.

6.2 Unless otherwise regulated in these GTC, eworx shall only be liable for damages caused by gross negligence or willful misconduct, regardless of whether they are direct or indirect damages, consequential damages or loss of profit. However, this does not apply to personal injury

6.3. eworx is not liable for the constant, complete and error-free availability of the services. In particular, eworx shall not be liable for disadvantages suffered by the customer due to disruptions and/or interruptions of the service that are unavoidable despite regular maintenance and servicing work.

6.4 Claims for damages expire 6 months after knowledge of the damage and the damaging party.

 

7. Force majeure

7.1 In the event of an external, elementary event that could not have been prevented even with the utmost reasonable care and is so extraordinary that it cannot be regarded as a typical operational risk (force majeure), such as in particular labor disputes, riots, war or terrorist conflicts, epidemics, pandemics, epidemics, power failures and/or shortages (electricity, gas, water, etc.), power failures, official measures such as quarantine orders, etc., the contracting parties' obligation to perform shall be suspended for the duration of the event, the contractual parties' obligation to perform shall be suspended for the duration of the event.

7.2 Point 7.1 shall also apply in particular to operational and traffic disruptions, improper performance by subcontractors, transport interruptions and/or production stoppages, in so far as these events are attributable to force majeure.

7.3 Point 7.1 also applies if eworx is in default at the time of the event.

7.4 Mutual claims for damages are excluded. eworx shall notify the customer as soon as possible of any impediments to performance due to force majeure.

7.5 Clauses to the contrary are explicitly not recognized.

 

8. Intellectual property and data protection

8.1 eworx or its licensors are entitled to all copyrights to the agreed services (programs including source codes, program documentation, etc.). The customer is entitled to use the software - after payment of the agreed remuneration - for its own purposes only for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on several workstations.

8.2 Only a license to use the work is acquired with the contract on which these GTC are based. Reproduction, editing, distribution and/or provision by the customer is explicitly prohibited.

8.3 The creation of software (tools) for the customer and/or on behalf of the customer, in particular through the development and creation of (special) programming, does not result in the acquisition of any rights beyond the use specified in the contract on which these GTC are based.
In relation to the customer, eworx is the sole holder of the rights of reproduction, processing, distribution and all other copyrights as well as the right to make the (special) programming available to third parties without the customer's separate consent.
eworx is not obliged to hand over the source code. Clauses to the contrary are expressly not recognized.
If the customer participates in the creation of (special) programming, he will grant eworx an exclusive right to use his part of the program.

8.5 The customer is permitted to make individual copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.

8.6 If the disclosure of the interfaces is required for the establishment of interoperability of the software, this must be requested from eworx by the customer against reimbursement of costs. If eworx does not comply with this request and decompilation is carried out in accordance with the Austrian Copyright Act (öUrhG), the results shall be used exclusively to establish interoperability.

8.7 Data and documents transmitted to the customer, in particular illustrations, drawings, calculations and samples, are works within the meaning of the Austrian Copyright Act (öUrhG) and as such are the intellectual property of eworx. They may not be reproduced, edited, made available to private persons and/or the public and/or distributed without the express written consent of eworx.

8.8 After the contractual provision of the service, the data and documents transmitted by eworx must be immediately, verifiably and completely deleted or otherwise destroyed by the customer or its agents (§ 1313a, § 1315 ABGB) or returned to eworx upon request.

 

9. Confidentiality and data protection

9.1 The contractual partners are obliged to treat data, information and documents that they receive in connection with the use of the services provided by eworx as confidential and undertake to maintain confidentiality. The transmitted data, information and documents may not be made accessible to third parties without the express written consent of the contractual partner.

9.2. eworx is exempt from the confidentiality obligation pursuant to Section 9.1 towards any vicarious agents whose services eworx uses, provided that eworx transfers its confidentiality obligation to them. eworx is liable for a breach of the confidentiality obligation of its vicarious agents as for its own breach.

9.3. eworx processes the personal data of the customer required for the purpose of contract fulfillment. The detailed data protection information pursuant to Art. 13 et seq. of the GDPR can be viewed on the eworx website at www.eworx.at/datenschutzerklaerung.

9.4 The customer is obliged to take all necessary data protection measures - in particular to obtain the declaration of consent of the data subjects - so that eworx may process the personal data for the purpose of the contractual relationship.

9.5 The above obligations shall apply beyond the termination of the contractual relationship.

 

10. Termination of the contractual relationship

10.1 Continuing obligations between eworx and the customer shall end upon

• expiry of the agreed period
• ordinary termination (point 11)
• extraordinary termination (point 13)
• death of the natural person or liquidation of the legal entity (point 14)

 

11. Ordinary termination

11.1 Unless otherwise agreed in writing, the contractual relationship between eworx and the customer may be terminated by either party subject to a three-month notice period to the end of the calendar month.

11.2 The termination must be made in writing by registered letter or by e-mail with confirmation of delivery.

 

12. Waiver of termination (minimum contract term)

12.1 Unless otherwise agreed in writing, both contracting parties waive their ordinary right of termination for a period of 12 months from the conclusion of the contract.

 

13. Extraordinary termination

13.1 Unless otherwise agreed in writing, the contractual relationship between eworx and the customer may be terminated by either party for good cause before the expiry of this period if it has been entered into for a specific period, but otherwise without observing a notice period.

13.2 An important reason that entitles the customer to extraordinary termination exists in particular

• if eworx is unable to comply with essential points of the contractually guaranteed scope of services - despite a written request by the customer - for a period of more than 14 days,
• in the event of a change to the GTC in accordance with point 15.

13.3 An important reason that entitles eworx to extraordinary termination exists in particular

• if the customer repeatedly violates essential contractual obligations,
• if the customer repeatedly defaults on payment despite a reminder and threat of termination,
• if the customer does not fulfill his obligation to provide securities in due time (point 3.13),
• if insolvency proceedings are opened against the customer's assets or an application to open insolvency proceedings is rejected for lack of assets to cover the costs. § Section 25a of the German Insolvency Code remains unaffected,
• if the customer has provided incorrect information when concluding the contract or has concealed circumstances of which eworx would not have concluded the contract had it been aware.

13.4 The termination must be made in written form by registered letter or by e-mail with confirmation of delivery.

 

14. Death of the natural person or liquidation of the legal entity

14.1 If the customer is a natural person, a permanent contractual relationship between eworx and the customer ends with the death of the customer.

14.2 If the customer is a legal entity, a long-term contractual relationship between eworx and the customer ends with the liquidation of the legal entity.

 

15. Amendment of the terms and conditions

15.1. eworx is entitled to amend these GTC at any time. In such a case, eworx will inform the customer of the changes by sending the amended GTC to the address provided.

15.2 The amendment of the GTC entitles the customer to terminate the contractual relationship within a period of 4 weeks from notification of the amendment. Notice of termination must be given in written form by registered letter.

15.3 If the customer does not terminate the contract within the period specified in point 15.2, the amended GTC shall be deemed to have been agreed.

15.4 The change shall take effect from the date specified by eworx to the customer in the information pursuant to point 15.1, whereby fee adjustments do not take effect before the next billing period.

 

16. Loyalty and poaching

16.1 The contracting parties undertake - also indirectly via third parties - to refrain from any enticement and employment of employees of the contracting parties who have contributed to the realization of the deliveries of goods and/or services for the duration of the execution of the contract and for 12 months after the complete execution of the contract.

16.2 In the event of a culpable breach of point 16.1, a contractual penalty (penalty) in the amount of one gross annual salary of the headhunted employee is agreed.

 

17. Place of performance

17.1 Unless otherwise agreed in writing, the place of performance shall always be the registered office of eworx.

 

18. Collateral agreements

18.1 Verbal collateral agreements to contracts based on these GTC and/or to these GTC are inadmissible. Amendments and/or supplements to the contracts on which these GTC are based must be made in writing in order to be valid. This also applies to any waiver of the written form requirement.

 

19. Correspondence and electronic business transactions

19.1 All correspondence between the customer and eworx has to be conducted with reference to the order number.

19.2 All legal declarations between the customer and eworx, including orders, order confirmations, collateral agreements, and so forth, must be in writing and transmitted via email to be considered valid.

 

20. Place of jurisdiction

20.1 The exclusive place of jurisdiction for any disputes in connection with these GTC and/or the contractual relationships between eworx and its customers on which these GTC are based shall be the responsible court at the registered office of eworx.

 

21. Choice of law

21.1 The contracts concluded between the customer and eworx shall be governed exclusively by Austrian law, excluding national and supranational conflict of law rules (IPRG, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods.

 

22. Severability clause

22.1 Should individual provisions of these GTC be or become legally ineffective, invalid and/or void, the validity of the other provisions shall remain unaffected. A legally ineffective, invalid and/or void provision shall be replaced by a legally effective and valid provision that comes as close as possible to the economic purpose of the provision to be replaced. 

 

Version: June 2023