Tiani Spirit GmbH

DC Tower / Donau-City-Straße 7 / door 2 /

34th floor

1220 Vienna
Austria / Europe

Phone  +43 1 235 11 85 11

office@tiani-spirit.com

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TIANI SPIRIT GMBH - General Terms and Conditions of Business

 

Section 1 Validity of the General Terms and Conditions of Business

The General Terms and Conditions of Business given below apply exclusively to business transactions with Tiani Spirit GmbH, Fasangasse 12 2102 Bisamberg, Germany, sales tax ID ATU61304234 (hereinafter referred to as Tiani). Our contractual partner is hereinafter referred to as Client (transferee or "contractual partner"). These General Terms and Conditions of Business are binding for all current and future business transactions with Tiani, regardless of whether or not explicit reference is made to these terms and conditions.

Any regulations deviating from or supplementing these General Terms and Conditions of Business - in particular the Client's General Terms and Conditions of Business and Purchasing - shall only be binding if Tiani expressly confirms this in writing.

 

Subject

1.1. The General Terms and Conditions of Business of Tiani for licensed programs regulate the transfer and usage of TIANI licensed programs and the provision of services.

 

TIANI licensed programs in the context of these General Terms and Conditions of Business are data processing programs and/or licensed data files (databases) in machine-readable form including the corresponding documentation, hereinafter also referred to collectively as "Licensed material". The licensed material is protected by copyright.

 

Tiani provides the Client, under the conditions given below, with the non-exclusive right for the use unrestricted in terms of place and content of TIANI licensed programs, limited to the project or contractual agreement defined in more detail in the contract.

A contract is created with the acceptance of the quotation from Tiani by the Client (= order). The date of creation of the contract is the day of receipt of the order signed by the Client at Tiani.

 

1.2. Following an initial order, the Client can place follow-on orders in writing under these terms and conditions. In this case, the contract is created with the transfer of the Tiani order confirmation to the Client. If Tiani modifies the terms and conditions, the Client can only place further orders once a new formal order has been made under the modified terms and conditions.

 

1.3. The responsibility for the installation and use of the licensed material, for the results achieved and the required choice of licensed material to achieve these results lies with the Client.

Quotation and contract conclusion

Section 2 Quotation

Quotations from Tiani are non-binding unless expressly designated binding.

A quotation is produced by Tiani in line with the best of their specialist knowledge, however no liability can be accepted for correctness.

 

If after the contract is awarded, cost increases arise totalling more than 15%, Tiani will notify the contractual partner of this immediately in writing. If these are unavoidable cost increases of less than 15%, no special agreement is required and these costs can be invoiced with no further arrangements necessary. Unless otherwise agreed, modifications to the quotation or additional orders may be invoiced at reasonable prices.

Scope of the right of use and conditions of use

2.1. "Use" is each full and partial copying (storage) of machine-readable licence material to the relevant machine for which the licence key provided by Tiani is intended, for the purpose of processing the instructions or data contained there, as well as the storage and display of machine-readable licence material on machines that are connected to the intended machine. The right of use also extends to the required usage of the documentation belonging to the licence program.

 

2.2. For the use of licence material on a machine other than the intended machine, a special licence is required; in cases where the intended machine cannot be used, use on another machine is permissible temporarily.

 

For a planned change of the intended machine, the Client is required to notify Tiani in advance; the change is permitted from the day on which Tiani confirms this to the Client in writing and sends a new licence key.

 

2.3. The Client is entitled to produce copies of machine-readable licence material including a backup copy, where this is required for the contractual usage. If the original or a copy is kept at a location other than the location of the intended machine, Tiani shall be informed in writing. Licence material provided in printed form is only permitted to be reproduced to the extent required for direct use at the customer's site;

 

The Client shall also be entitled to modify machine-readable licence material for his own purposes and to connect it to other programs as well as use the version of the licence material processed in this way in accordance with the contract conditions.

 

2.4. If licence material is made available only in machine language (object code), any conversion, including partial, into the source language (source code) is not permissible. The exception to this is decompilation to the extent permitted by law.

Assurance of rights to the licence material

3.1. All rights to the licensed material, including all copies of the machine-readable licensed material produced by the Client, whether or not edited, translated or unchanged, or processed using other connected programs, are reserved by Tiani as the rights holder of the licensed program, without prejudice to the Client's ownership of the program media. The Client is required to attach the copyright notice of the legal owner on all such copies.

 

3.2. The Client is required to prohibit access by third parties to licensed material including copies of all kinds without time restriction (including other licence holders of the corresponding program). Third parties do not include employees of the Client, the rights holder and other persons, assuming they as long as they are used for the contractual use of the licence program at the Client's premises.

 

3.3. A transfer of the granted rights of use or granting of sub-licences to the licensed material is not permissible, unless expressly agreed in the contract.

 

3.4. Before any transfer of program media to third parties, the Client is required to delete the licensed material contained on that media.

Confidentiality

Section 5 Confidentiality 

The Client hereby irrevocably undertakes to keep confidential all operational and business secrets made available to him by Tiani, or otherwise made accessible in connection with or due to a business relationship or in contact with Tiani, and to prevent all access by third parties in any way without approval from Tiani. In addition, the Client is required to use information only on a "need to know" basis and only in the context of the contract concluded.

 

The obligation for confidentiality shall remain in place for 5 years following termination of the business relationship with Tiani or independently of any business relationship for 5 years following submission of the quotation by Tiani.

Prices and payment terms

Section 6 Prices and payment terms

Our prices are given in euros. The legal rate of sales tax shall also be invoiced at the relevant rate in force. All fees must be paid by the Client.

The current, valid Tiani price list shall apply. The prices given apply "ex works" INCOTERMS 2010 and do not include the costs for transport, assembly or installation. The Tiani price list shall apply until revoked.

Services including the training and instruction of the employees of the contractual partner shall be settled in accordance with the valid service price list. For services provided on Saturdays/Sundays and any other times outside the normal working hours (Monday - Thursday 7.30 to 16.30, Friday 7.30 to 12), as well as on public holidays, an additional charge in the sum of 100% shall be invoiced, whereby the calculation of the normal hourly rate arising from the price list is used as the basis.

All travel costs and expenses arising in performing this contract, shall be paid by the Client in addition to the agreed price.

 

6.1. The fees may consist of one-off licence fees, basic licence fees, ongoing licence fees, one-off initial fees, one-off additional fees, processing fees and/or combinations thereof. One-off additional fees can be calculated for certain licence programs when the Client moves over to a subsequent version from Tiani from the previously used licence program.

 

The one-off licence fees as well as monthly, quarterly or other settlement periods for the ongoing licence fees are given in the quotation.

 

6.2. Unless otherwise contractually agreed, the obligation to pay is incurred with the use of the licence program.

 

For orders containing multiple units (e.g. programs and/or training courses, implementations in multiple partial stages), Tiani shall be entitled to invoice following the delivery of each individual unit or service.

 

6.3. All invoices become due, without deductions, within 14 days following date of invoice.

Default interest: In the event of a delayed payment, default interest shall be payable in the sum of 8% over the relevant, applicable basic rate of interest.

 

Price adjustment: It is explicitly agreed that the amount payable plus additional payment is required. The consumer price index (VPl 2004 = 100), published monthly by the Austrian Statistical Office, or an index replacing it, serves as a measure of the value stability.

 

6.4. TAXES AND DEDUCTIONS

All fees given on the order document exclude sales tax. Should deductions be levied (e.g. legal fees, withholding taxes, other taxes, fees and charges) in connection with the conclusion and implementation of this contract or a supplement thereto, these shall be payable by the Client.

Partial invoices shall always be permitted for partial deliveries.

If partial payments are agreed, a time deduction shall be incurred, even if only one partial payment is late or incomplete. When a time deduction is incurred, the total remaining amount due shall be immediately due for payment.

 

In the event of a time deduction, Tiani shall be entitled to take possession under retention of title of the goods supplied without withdrawal from the purchase agreement, until the entire amount due is covered in full, including additional costs.

Place of fulfilment and risk assumption

Section 7 Place of fulfilment and risk assumption

The place of fulfilment is the headquarters of Tiani "Spirit" GmbH, costs and the risk of transport shall be borne by the Client. For data, the risk of the loss or alteration of the data during download and transmission via the internet is transferred to the Client when the Tiani network interface is exceeded.

Retention of title 

Section 8 Retention of title, rights of use 

The goods shall remain the property of Tiani until paid for in full.

For the standard software supplied, the licence conditions agreed by the Client with the relevant software manufacturer, such as Microsoft, SAP or other providers, shall apply.

Acceptance and partial delivery

Section 9 Acceptance and partial delivery

The contractual partner shall be required to accept the deliveries and services provided by Tiani.

Our deliveries and services can always be made in parts. Partial acceptances are permissible for partial deliveries.

With the delivery "ex works" INCOTERMS 2010, delivered goods shall be regarded as accepted.

 

Insofar as installation services are agreed, the service shall be regarded as accepted at the earliest of the following times: when the Client's acceptance or its end customers is confirmed; when the installed delivery or service is operative at the Client's or put into operation at the end customers' sites; or at the latest 4 weeks following completion of the installation.

 

Service and production services shall be regarded as accepted at the time of provision.

Should the contractual partner determine significant faults following acceptance, the partner shall be entitled to have these faults rectified by Tiani under the warranty.

Delay 

Section 10 Delay

10.1. Delivery delay

The delivery dates and deadlines shall be observed by Tiani where possible: Unless explicitly agreed as binding, these are non-binding and always constitute an anticipated time of delivery and transfer to the Client.

 

A withdrawal from the contract by the Client due to delays in delivery is only possible with a reasonable extension of at least 6 weeks. The withdrawal shall be exercised via registered letter.

The right of withdrawal refers only to the delivery or performance component to which the delay relates.

 

Tiani shall not be liable for any delivery delays and cost increases resulting from incorrect, incomplete or subsequently modified information and information or documents provided and shall not result in any delays attributable to the Client. Any resultant added costs shall be borne by the Client.

 

10.2.  Acceptance delay

Any services not accepted at the agreed date will incur costs for which Tiani will be invoiced at € 950 per calendar day.

At the same time, Tiani shall be entitled either to insist on the fulfilment of the contract or to rescind the contract after setting a reasonable deadline and to re-use the goods elsewhere. In the event of re-use, a contractual penalty of 25% of the invoice amount excluding VAT shall be regarded as agreed.

Warranty/liability and compensation

Section 11 Warranty

The warranty period is 6 months following acceptance in accordance with section 7 of these terms and conditions.

Any faults occurring should be specified and notified in writing immediately by the contractual partner

Evidence of the presence of faults shall be provided by the contractual partner. Section 924 of the Austrian Civil Code shall not apply.

In the event of a warranty claim, Tiani shall be entitled to determine the type of warranty (repair, replacement, price reduction or conversion) itself.

 

11.1. Tiani shall warranty that the program media contains no material or production errors on handover to the Client. Within the warranty period, Tiani shall replace any data medium that is determined to be faulty.

 

11.2. No warranty can be provided for freedom from errors of the licence programs. Unless otherwise contractually agreed, Tiani accepts no liability for ensuring that the program functions meet the requirements of the Client or will function in the selection of equipment chosen by the Client.

 

11.3. During the warranty period, program errors will be rectified by Tiani within a reasonable period. However, Tiani shall make no warranty that the error correction procedures will correct all errors or resolve all problems.

 

11.4. The warranty shall not cover faults caused by non-compliance with the specified conditions of use.

 

No warranty shall be provided by Tiani for programs modified subsequently by the Client or by third parties.

 

The warranty applies to Tiani products, for products from third party manufacturers (e.g. SAP, Cisco), the warranty periods provided by the manufacturers shall apply.

 

11.5. Generally available improvements to the licensed programs and / or the documentation shall be made available to the Client during the warranty period without additional charge, unless these are new releases / versions that are chargeable.

 

If Tiani remedies defects outside the warranty or provides other services or production services, these will be invoiced at cost in line with the current Tiani price list

Troubleshooting: A workaround agreed between the customer and Tiani is permitted as a temporary solution until the fault correction process and can be resolved in agreement with the Client in the context of the agreed patch cycles.

Section 933b of the Austrian Civil Code shall not apply.

Section 12 Compensation

In all cases considered, Tiani shall only be liable for compensation in the event of malicious intent or gross negligence. In the event of minor negligence, Tiani shall only be liable for personal injury. The liability shall be time-restricted to 6 months following notification by the Client of the damage/injury and the injuring party.

 

Tiani shall not be liable for indirect damages, loss of profit, loss of interest, omitted savings, consequential and property damages, damages from claims of third parties and loss of data and programs and their recovery.

 

If, regardless of the situation, an agreed penalty has imposed on Tiani, this penalty shall be excluded from the judicial right of moderation and the enforcement of damages extending beyond the penalty.

 

Insofar as Tiani provides the works with the help of a third party and in this connection, warranty claims and damage claims are incurred in relation to third parties, Tiani hereby assigns these claims to the Client. In this case, the Client shall be given priority over third parties.

 

If the data backup is explicitly agreed as a service, the liability for the loss of data shall not be excluded, but shall be limited to a maximum of EUR 10% of the order total per claim, to a maximum of EUR 15,000, for the recovery of the data. Warranty and damage claims of the Client extending beyond those given in this contract, regardless of legal basis, shall be excluded.

Termination, obligation to return licensed material, modification of the contract 

13.1. Licensed programs can, unless otherwise contractually agreed, be terminated in writing by the Client with a one-month notice period. In this situation, Tiani can terminate a contract in full and all individual licences in writing with a notice period of 6 months.

 

13.2. When a termination becomes effective, the Client shall be required to submit to Tiani and destroy (delete) the original as well as all copies and partial copies as well as modified copies of the relevant licensed material or copies connected to other program material; this also applies to any program documentation delivered in advance. However, if the Client replaces a licensed program with a new program version, the Client shall be entitled to retain the previous version as a standby reserve before its return or destruction for up to 3 months. The retention of an archive copy shall be agreed in writing.

 

13.3. Tiani will inform the Client in writing of a modification to the contract at least 3 months before the planned modification is to become effective.

General 

14.1. It is not permissible to transfer the contract. The transfer of the licensed license or the granting of sublicenses to the licensed material, copies or parts thereof is subject to the prior written consent of Tiani, unless otherwise agreed in the contract.

Place of jurisdiction and governing law 

Section 15 Place of jurisdiction and governing law

15.1. Place of jurisdiction

To resolve all disputes arising from a contract - including any dispute on the existence or non-existence of the contract - shall be agreed as the sole responsibility of the relevant court at the registered office of Tiani.

 

15.2 Governing law

The contract shall be subject exclusively to the law of the Republic of Austria under the exclusion of UN sales law.

Other conditions

Section 16 Other conditions

16.1. Severability clause

Should any provision of these terms and conditions be or become invalid or unenforceable in whole or in part, this shall not affect the legality or feasibility of all other business regulations. The Contracting Parties shall replace the legally ineffective or impracticable provision with an effective and feasible provision that is as close as possible to the content and purpose of the legally ineffective or impracticable provision.

 

16.2. Formal requirement

Changes or supplements to a contract must be made in writing. This also applies to changing the formal writing requirement.

 

16.3. Offsetting

Offsetting against our claims with counterclaims of any kind shall not be permitted.

16.4.Subcontractors

The use of subcontractors is always permitted.