Status: June 2003

1. Scope and Validity of Contract

All orders and agreements are only then legally binding when they have been signed by an authorised representative of the seller and they obligate only to the extent set forth in the order confirmation. The terms and conditions of the buyer are invalid for the legal transaction which is the subject of this contract, as well as for the entirety of business relations. All offers are subject to change without notice.

2. Performance and Inspection

2.1. The subject of an order can be:

• Development of organisational plans
• Micro and macro analyses
• Creation of custom-designed programmes
• Delivery of library (standard) programmes
• Acquisition of rights to use software products
• Acquisition of exclusive rights to use and to exploit software products
• Support at system start-up / support during system changeover
• Telephone advisory service
• Programme maintenance
• Creation of programme carriers
• Other services

2.2. Individual organisational plans and programmes shall be elaborated in line with the type and scope of information, documents and aids which have been made available in full by the buyer. These also include customary test data as well as the opportunity to test to the necessary extent, which the buyer shall make available in a timely manner, during normal business hours, and at his expense. If the buyer has already been working in real time in an operating system that is being made available for testing, the responsibility for securing the real data lies with the buyer.

2.3. The basis for creating custom-designed programmes shall be the written performance specifications that either are provided by the buyer or that the seller writes up, at the charge to the buyer, on the basis of documentation and information provided to him by the buyer. This performance catalogue is to be inspected by the buyer for correctness and completeness and is to be initialled by him as a sign of his assent. Requests for modifications which are made thereafter can result in separate deadline and price agreements.

2.4. For individually created software or programme adaptations, it is required that each programme be accepted by the buyer at the latest four weeks after delivery by the seller. This acceptance will be confirmed in a record oft he transaction by the buyer. (Inspection for correctness and completeness in accordance with the performance specifications accepted by the seller on the basis of the test data made available to him, as described in 2.2). Should the buyer allow the period of four weeks to pass without accepting the programme then the delivered software shall be deemed to have been accepted as on the final day of the stated time period.
If the buyer uses the software in real-time operations, the software is thereby also deemed to have been accepted by the buyer. Any defects, i.e. deviations from the written performance specifications, are to be reported to the seller with sufficient supporting documentation. The seller shall make efforts to correct the defects as quickly as possible. If there are serious defects that have been reported in writing i.e., if real-time operations have not commenced or cannot be continued, a renewed acceptance of the work following correction of the deficiency is required. If there are serious defects that have been reported in writing i.e., if real-time operations have not commenced or cannot be continued, a renewed acceptance of the work following correction of the deficiency is required.

2.5. When library (standard) programmes have been ordered, the buyer confirms his knowledge of the scope of performance of the ordered programme on order.

2.6. Should it prove in the course of the work to be impossible, actually or legally, to complete the order in accordance with the performance specifications, it is the responsibility of the seller to immediately inform the buyer thereof. If the buyer does not change the performance specifications accordingly or create the conditions to make completion of the order possible, the seller can reject performance of the order. If the impossibility of carrying out the order is due to an omission on the part of the buyer or to a later charge by the buyer then the seller is entitled to withdraw from the order. The buyer is to reimburse the seller’s costs and fees that have become due for the work as well as for any dismantling costs.

2.7. The shipment of programme carriers, documentation and performance specifications shall be at the expense and risk of the buyer. Should the buyer wish further training and clarifications, these will be billed separately. Insurances are only taken out at the request of the buyer.

3. Prices, Taxes and Fees

3.1. All prices are only in Euro and do not include sales tax unless mentioned otherwise. They are only valid for the present order. The prices quoted are ex business domicile or branch office of the seller. The costs of programme carriers (e.g., CDs, magnetic tapes, magnetic tapes, magnetic disks, streamer tapes, magnet tape cassettes etc.) as well as any contract fees shall be invoiced separately.

3.2. For library (standard) programmes the valid prices are the list prices in effect on the day of delivery. All other services (organisational consultancy, programming, training, support during changeover, telephone advisory services) will be charged at the rates in effect on the day the services are performed. Deviations from the amount of time calculated as being required for the work, and for which the seller is not responsible, shall be charged according to the actual time spent.

3.3. The costs for travel, day-to-day and overnight accommodation costs shall be invoiced separately to the buyer according to the valid respective rates. Transit time is to be considered as work time.

4. Delivery Dates

4.1. The seller is to endeavour to keep as closely as possible to the agreed dates for completion of the order.

4.2. The targeted completion dates can only then be met if the buyer makes available to the seller in full, on the dates established by the seller, all the necessary preliminary work and documents, especially the performance specifications accepted by him in accordance with §2.3 and if the buyer fulfils his obligation to cooperate to the extent required. Delays in delivery and cost increases that result from incorrect, incomplete, or subsequently changed data and information or documentation provided, are not the responsibility of the seller and cannot result in the seller’s being in default of delivery. Additional costs so arising are borne by the buyer.

4.3. In case of orders that encompass a number of units or programmes, the seller is entitled to make partial deliveries and to enter partial invoices.

5. Payment

5.1. The invoices submitted by the seller, inclusive of sales tax, are payable at the latest ten (10) days from receipt of the invoice without any deductions and free of charges. For partial invoices, the terms of payment for the entire order are valid analogously.
5.2. Where orders encompass a number of units (e.g., programmes and/or training sessions, completion in stages), the seller is entitled to submit an invoice after the delivery of each unit or service.

5.3. Payment on the agreed dates is an essential condition for delivery and for fulfilment of the contract by the seller. Failure on the part of the buyer to comply with the agreed payment schedule entitles the seller to discontinue current work and to withdraw from the contract. All costs connected therewith as well as loss of profit are to be borne by the buyer. In case of delayed payment, interest on payment in arrears will be charged at customary bank rates. In case two consecutive instalments are not paid on time, the seller has the right to deem payment to have been missed and demand repayment of the aliquot parts.

5.4. The buyer is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.

6. Copyright and Use

6.1. The seller or his licensors are entitled to all copyrights on the agreed services (programmes, documentation, etc.). The buyer obtains only the right to use the software after payment of the agreed remuneration strictly for his own purposes, only with the hardware as specified in the contract, and, in accordance with the number of licenses acquired, simultaneously at different workplaces. By this contract the buyer acquires merely the authorisation to use the software. Further distribution of the product by the buyer is not permitted, as per the copyright law. The buyer does not by virtue of participating in the production of the software acquire any rights beyond its use as set forth in this contract. Any infringement of the copyrights of the seller will result in the right to claim damages, in which case the seller is entitled to full satisfaction.

6.2. The buyer is permitted to make copies for archival and data backup purposes only on condition that the software does not contain an express prohibition on the part of the licensor or a third party and that all notices of copyright and ownership are transferred unchanged into these copies.

6.3. Should the disclosure of the interfaces be necessary to produce the interoperability of the software covered by this contract, the seller is to request this of the buyer with remuneration of costs. If the seller does not comply with this stipulation and decompilation follows in accordance with copyright law, the results are to be used exclusively for the production of interoperability. Misuse will result in claims for damages.

7. Right of Cancellation

7.1. Should the agreed-on date of a delivery be exceeded due solely to the fault or the unlawful conduct of the seller, the buyer is entitled to cancel the contract in question by registered letter if essential parts of the agreed service are not performed within a reasonable grace period and the buyer is in no way at fault.

7.2. Force majeure, work conflicts, natural catastrophes, and transportation stoppages, as well as other circumstances that cannot be influenced by the seller relieve the seller of the obligation to deliver or permit him to redetermine the agreed delivery period.

7.3. Cancellation by the buyer is only possible with the written agreement of the seller. If the seller agrees to the cancellation, he is entitled to charge not only for services rendered and accrued costs, but also a cancellation fee that represents 30% of the value of the total order not yet settled.

8. Warranty, Maintenance, Alterations

8.1. Notices of defects are valid only if they concern defects that are reproducible and if they are submitted within 4 weeks after delivery of the agreed service or, in the case of custom-designed software, after acceptance of the program in accordance with 2.4, and documented in writing. Improvement definitely shall take priority over reduction in price or conversion in the case of the warranty. If the notice of defects is justified, the defects are to be remedied within an appropriate period of time, and the buyer is to make available to the seller all measures required by him to investigate the problem and remedy the defects. The presumption of defectiveness in accordance with § 924 General Civil Code shall be regarded as excluded.

8.2. Revisions and additions, which, before the agreed work is handed over, prove to be necessary because of organisational deficiencies or technical deficiencies in the programme, and for which the seller bears responsibility, are to be carried out free of charge by the seller.

8.3. The costs for support provided, diagnosis of errors, remedying defects and failures that are the responsibility of the buyer, as well as other corrections, revisions and additions are to be carried out by the seller and the costs charged to the buyer. This is also the case for the remedying of errors when programme revisions, additions or other interventions have been carried out by the seller himself or by a third party.

8.4. Furthermore, the seller assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organizational resources and data carriers, insofar as these are stipulated, unusual operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment.

8.5. For programmes that are subsequently altered by programmers of the buyer or by third parties, any existing warranty of the seller’s is no longer applicable.

8.6. Insofar as the subject of the order is the revision or supplementation of existing programs, the warranty covers the revision or supplementation. The warranty for the original programme does not thereby again come into effect.

9. Liability

The seller is liable for damages insofar as intent or gross negligence can be proven, within the framework of statutory regulations. Liability is excluded in case of slight negligence. The compensation for consequential damage and financial losses, non-achieved savings, interest loss and for damage from third-party claims vis-à-vis the buyer shall be excluded.

10. Loyalty

The parties to the contract obligate themselves to reciprocal loyalty. They will not hire away staff or employ, including by way of third parties, staff of the other party to the contract who have worked on the realization of the projects, during the duration of the contract or for 12 months after the end of the contract. A party to the contract in violation of this clause is obliged to pay lump-sum damages in the amount of one annual salary of the employee.

11. Protection of Data Privacy, Non-disclosure

The seller obligates his employees to observe the provisions of §15 of the Data Privacy Law.

12. Other

Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract. The parties to the contract will work in a spirit of partnership to find an arrangement that approximates as nearly as possible the inoperative terms.

13. Concluding Terms

Insofar as not otherwise agreed, the statutory regulations applicable to registered merchants are exclusively those in force under Austrian law. This is the case also when the order is carried out outside of Austria. In case of conflict, it is agreed that only the responsible local court in the seller’s place of business has jurisdiction. For sales to consumers within the meaning of the consumer protection law, the above terms are valid only insofar as the consumer protection law does not insist on other conditions.

Graz, June 2003