Terms and Conditions

General Terms and Conditions of ims media gmbh

Please read the following terms and conditions carefully before placing an order with us. By placing an order with us or
collaborating with us, you agree to these terms.

1. Scope

These terms and conditions apply exclusively to all offers, orders, deliveries, and services provided by the contractor. Any other agreements deviating from these conditions are only effective if they are explicitly marked as such
and require the prior written consent of an authorized representative of the contractor to be valid. Conflicting general terms and conditions of a contracting party or a supplier will not be accepted. The place of performance for all services of the contractor is 1220 Vienna, Hagedornweg 73a

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2. Contract Scope and Validity

All orders and agreements are only binding if signed in writing and in accordance with company standards by the contractor and are only binding to the extent specified in the order confirmation. Offers are generally non-binding and subject to change.
A contractual relationship between the contracting parties is established when the contractor sends a written order confirmation or a delivery to the last known address provided by the contractor following receipt of the order or at the beginning of actual service delivery (e.g. website creation, creating a link, shops, …). In the case of sales leasing, a valid order only comes into effect with acceptance by the lessee. Oral agreements do not exist, and any deviation from written form requires written form. Any changes and additions to this order must be made in writing to be valid.

2.1 These general terms and conditions also apply to future transactions between the contracting parties, even if not explicitly referenced.

2.2 If the contract is concluded with a consumer not in premises that the contractor uses permanently for business purposes, at a fair, or if the business relationship with the contractor was not initiated directly by the consumer, and discussions between the client and the contractor preceded the conclusion of the contract, the consumer is entitled to withdraw from the contract within one week of its conclusion. This withdrawal requires written form for its legal validity, and delivery to the contractor must be provable, for example, by registered mail.

2.3 Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, they have the right to charge a cancellation fee of 25% of the unaccounted order value of the entire project, in addition to the services delivered and the incurred costs.

3. Services and Review

3.1 The subject of an order can include, among other things:
* Creation of a homepage
* Setting up an internet shop
* Setting up banner advertising and links
* Development of custom programs
* Creation of organizational concepts
* Purchase and delivery of a software package: The acquisition occurs fundamentally through the dispatch of the software product to the client, whereby the client agrees to the local shipping method.
* Acquisition of usage rights for software products: The usage rights are acquired, among other things, by breaking the seal of the software package
* Delivery of standard programs to software dealers
* Assistance in commissioning
* Training
* Telephone consulting
* Program maintenance
* Creation of program carriers
* Retail and wholesale of goods of all kinds
* Mediation of services from partner companies
* Other services
* Acquisition of usage permits

3.2 The preparation of individual organizational concepts, homepages, internet shops, and programs is based on the nature and extent of the materials and information fully provided by the client, documents, and aids. This includes practical test data as well as sufficient test options, which the client must provide in a timely manner, during regular working hours, and at their own expense. If the client is already working on the provided software for testing in live operation, the client is responsible for securing the live data.

3.3 The basis for the commencement of execution of the order by the contractor is the written service description that the contractor prepares based on the documents and information provided to him at cost and must be reviewed by the client for completeness and accuracy and marked with his consent. Later arising changes may lead to separate changes in deadlines and prices.
In particular, the client must fulfill their collaboration obligations. Costs, responsibility, … for this must be borne by the client.

3.4 Individually created internet shops, software, or program adaptations require program acceptance for the affected software package no later than 4 weeks after delivery by the client. This will be confirmed in a protocol by the client. If the client allows this period to elapse without program acceptance, the delivered software is considered accepted. Any occurring defects, which are deviations from the agreed service description, must be adequately documented and reported in writing to the contractor, who will strive to remedy the defects as soon as possible. If there are significant defects reported in writing, a new acceptance covering the entire program is required after they have been remedied. The client is not entitled to reject the acceptance of the software due to insignificant defects. Delays and increased costs due to incorrect, incomplete, or subsequently modified data and information or provided documents are not the responsibility of the contractor and cannot lead to a delay. The resulting additional costs are borne by the client.

3.5 When ordering standard programs, the client confirms with the order that they are aware of the scope of services of the ordered program.

3.6 If during the work it is found that the execution according to the service description is actually or legally impossible, the contractor is obliged to notify the client immediately. If the client does not amend their service description accordingly or create the conditions that make the execution of the order possible, the contractor can refuse to perform. If the impossibility of execution is due to the client’s fault or a subsequent change in the service description by the client, the contractor may withdraw from the contract. The costs and expenses incurred for services up to that point must be replaced by the client.

3.7 The dispatch of documents, program carriers, manuals, and service descriptions is at the client’s expense and risk. Insurance is only carried out at the express request of the client.

3.8 Additionally requested training and explanations will be charged separately.

3.9 The contractor reserves the right to refuse orders from the client without stating reasons.

4. Ownership, Copyright, and Use

4.1 All copyrights to the agreed services belong to the contractor or its subcontractors. With the delivery and payment for the service, database, shop, software programs, … no ownership of programs is acquired, only a right of use. The programs remain the property of the manufacturer, and the license conditions must be adhered to.

4.2 Distribution by the client is excluded according to copyright law. The involvement of the client in the creation of the service does not acquire any rights beyond the usage defined in the contract. Any infringement of the contractor’s copyrights will result in claims for damages, where full restitution must be provided in such cases.

5. Delivery and Delivery Dates

5.1 The contractor strives to adhere as accurately as possible to the agreed fulfillment dates (completion).

5.2 The desired fulfillment dates can only be adhered to if the client provides all necessary information at the times specified by the contractor, fully makes documents available, and fulfills their obligation to cooperate to the required extent. Delivery delays and cost increases arising from incorrect, incomplete, or subsequently modified data and information or provided documents are not the responsibility of the contractor and cannot lead to a delay of the contractor. The client bears the resulting additional costs.

5.3 For orders that include multiple units or programs, the contractor is entitled to make partial deliveries and issue partial invoices.

5.4 Shipping and delivery occur at the client’s expense unless there is another written agreement. The contractor chooses the means of transport and transportation route, unless the client expressly orders a specific shipping method. Upon handing the goods to the supplier, the risk passes to the client. This also applies if free delivery has been agreed. If the goods are to be picked up by the client (pickup obligation), the risk passes to the client upon notification of the goods’ readiness. This provision also applies to replacement deliveries and corrections by the client.

5.5 In the event of any returns by the client to the contractor, the client bears the risk until the handover of the goods at the contractor’s premises. Any returns by the client must always be made free of charge.

6. Prices
6.1 The prices of the client shall apply in the absence of any other agreement, plus transport costs from the contractor’s place of business. Discounts, unless otherwise agreed in writing, are excluded. The currently valid price list applies.

6.2 All prices are in euros plus value added tax. They apply only to the present order. The mentioned prices are valid from the contractor’s place of business or establishment. The costs of program carriers and any contract fees will be charged separately.

For standard programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, …), their billing will be based on the actual occurrence, unless the occurrence of these additional services is the client’s responsibility.

The costs for travel, daily allowances, and overnight expenses will be charged separately to the client according to the currently valid rates.
Travel times are considered working hours.

The costs for maintenance and program changes will be charged separately according to the currently valid rates and require a separate contract unless otherwise agreed.

7. Payment
7.1 The invoices issued by the contractor including value added tax are payable without any deduction and free of charge within 14 days of receipt of the service or software, or if agreed, upon receipt of the invoice. The same payment conditions apply to partial invoices as for the total order.

7.2 Adherence to the agreed payment deadlines is a critical condition for the performance of the delivery or contract fulfillment by the contractor. Non-compliance entitles the contractor to suspend ongoing work and withdraw from the contract. The client bears all associated costs and lost profits. In the case of late payment, default interest at the level of customary bank default interest will be calculated. In the case of delay concerning two partial payments, the deadline loss takes effect, and the total amount becomes due immediately.

The client is not entitled to withhold payments due to incomplete overall delivery, warranty or guarantee claims, or complaints.

7.3 Retention of title: The goods remain the property of the contractor until the purchase price is paid in full. Pledging, securing assignment, sale, or transfer of the goods in exchange is not permitted for the client. In the event of third parties accessing the service products or software, the client must inform the contractor immediately.

7.4 A set-off against open claims against the contractor and the withholding of payments due to alleged but unacknowledged claims of the client against the contractor is excluded. In consumer transactions, a set-off against open claims against the contractor is only possible if the reciprocal claims are related legally or the client’s counterclaim has been legally established or acknowledged by the contractor.

7.5 It is excluded that the client refuses their contractual performance under § 1052 of the Austrian Civil Code to obtain or ensure consideration or claims any other statutory retention rights.

8. Right of withdrawal

8.1 In the event of exceeding an agreed delivery time through the sole fault and unlawful actions of the contractor, the client is entitled to withdraw from the relevant order by registered letter, but only if the agreed service is not provided in essential parts within a reasonable grace period of at least 90 days, and the client bears no fault in this matter.

8.2 Force majeure, labor disputes, natural disasters, and transport blocks as well as other circumstances beyond the contractor’s control that lead to the impossibility of performance release the contractor from the delivery obligation, or if it is merely a delay, the client permits the contractor to carry out the fulfillment of the order by setting a grace period of 90 days. In all these cases, the client must pay the costs incurred up to that point.

8.3 Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to the cancellation, they have the right to charge a cancellation fee of 30% of the unaccounted order value of the entire project, in addition to the services delivered and the incurred costs.

9. Warranty and Liability

9.1 Deviations of the delivered goods and services from the offer documents are permissible as long as they essentially fulfill or contain the services of the created program.

9.2 The place for the fulfillment of warranty claims is, unless otherwise agreed in writing, Vienna. For damages based on negligent representation of non-essential contract obligations or non-essential obligations, liability for indirect damages and atypical consequential damages is excluded. To the extent the contractor is insured against liability for the mentioned damages, the contractor may also assign any insurance claim to the injured party.

9.3 According to the current state of technology, a complete exclusion of errors in software or hardware is not possible. If the software does not fulfill the program functions within the warranty period, complaints about defects are only valid if they concern reproducible defects and are documented in writing within 14 days of receipt of the goods or for custom software after program acceptance. If the client is a merchant as per the Commercial Code (HGB), they must comply with the statutory obligation to notify defects according to § 377 HGB. In this case, the client is obliged to inspect the goods immediately after receipt and to report any deficiencies immediately. The contractor is entitled to remedy the defect by setting a reasonable grace period, at least 90 days. This applies to both agreed services and the delivery of custom software and mass software. The client must be provided with all required measures for remedying the defects.

9.4 The contractor’s warranty is limited at their discretion to replacement delivery or rectification. The warranty period begins with the delivery of the goods.

9.5 The contractor is only liable for damages if intent or gross negligence can be proven, within the framework of statutory provisions. Liability for slight negligence is excluded. The damages to be paid by the contractor are limited to the amount of the simple purchase price. All warranty claims expire in any case 6 months after delivery. Compensation for consequential damages and asset damages, lost savings, lost profits, interest losses, and damages from claims by third parties against the contractor is excluded in all cases, provided it is legally permissible.

9.6 Costs for assistance, error diagnostics, as well as error and disruption elimination that are the client’s responsibility, as well as other corrections, changes, and additions will be performed by the contractor against billing. This also applies to the remedy of defects if program changes, additions, or other interventions have been made by the client themselves or by third parties.

9.7 Furthermore, the contractor assumes no warranty for errors, disruptions, or damage resulting from improper handling, changes in operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers or data lines, as far as such prescribed, abnormal operating conditions (especially deviations from installation and storage conditions), and transport damages.

9.8 For programs or data changed subsequently by the client’s own programmers or third parties, any warranty and liability obligations of the contractor will cease. A repair is to be charged if possible and will be billed to the client.

9.9 To the extent the subject of the order is the modification or addition of already existing programs, the warranty applies only to the modification or addition. The warranty for the original program does not thereby revive.
9.10 The contractor is not liable for partner companies or other companies contacted by the client. This applies to both presented content or links as well as software errors or other negative influences including the importing of computer viruses. For disturbances within the internet or providers, the contractor assumes no liability. The client acknowledges that maintenance work on hardware and software must be carried out as usual and that operational disruptions in this context do not constitute a warranty or liability claim.

10. Contract Duration

10.1 The contractual relationship begins with the conclusion of the contract and is concluded for an indefinite duration. It can be terminated by either party with a notice period of 3 months at the end of any calendar year in writing or electronically, with a minimum contract duration of 12 months. The rights of the contractor listed below in the event of delinquency of the client remain unaffected.

10.2 If the client does not fulfill their payment obligations, the contractor is entitled to terminate the contract in writing or electronically after a warning to request payment with a grace period of 14 days, in exceptional cases, e.g., in the event of the risk of incurring additional costs immediately, prematurely. The existing claims concerning the remaining contract duration remain in force.

10.3 The contractor is also entitled in case of payment delay to calculate all resulting costs and expenses, collection costs, attorney fees, and interest on claims at the standard bank default interest rate from the day of the delay.
10.4 When paying by credit card, the client is responsible for ensuring that the credit card is not blocked or expired. Otherwise, the resulting delays in payment are at the client’s expense.
10.5 Furthermore, the contractor is entitled in case of payment delay to suspend services from the order with written notification to the client until full payment is received. Due payments, … are not affected by this.

11. Availability and Obligations

11.1 Regarding the availability of links, … we are also dependent on our providers, furthermore, we must manage and update our domains, which may result in links, … not being available. Should delays occur as a result, the client is not entitled to reduce their payments or make claims.
11.2 The client agrees to observe and comply with the provisions of the pornography law, telecommunications law, … and to notify the contractor of any deviation immediately, and to keep the contractor completely harmless in this respect.

12. Loyalty
The contracting parties commit themselves to mutual loyalty. They will refrain from soliciting and employing, including through third parties, employees who have worked on the execution of the orders of the other contracting party during the term of the contract and for 12 months after the end of the contract. The contracting party violating this obligation is obliged to pay damages amounting to 5 annual salaries as well as all direct and indirect training costs of the employee.

13. Data Protection, Confidentiality
13.1 The contractor obliges his employees to comply with the provisions according to § 20 of the Data Protection Act. According to the legal provisions of the Telecommunications Act (TKG), the contractor is entitled to store personal brokering data for billing purposes. The assertion of damages by the contractual party or third parties against the contractor arising from such a connection is mutually excluded. The client is informed that the contractor is allowed to use customer data according to Paragraph 96 TKG for the creation of a participant directory.
13.2 The client keeps the contractor harmless against attacks from third parties regarding possible violations of immaterial rights, particularly copyright and performance protection rights. This indemnification also includes pre-litigation attorney fees as far as they are useful for appropriate legal defense.

14. Miscellaneous
For sales to consumers in terms of the Consumer Protection Act, the above-mentioned terms and conditions apply unless the Consumer Protection Act mandatorily provides for different provisions. Should individual provisions of this contract be ineffective or become ineffective, the remaining content of this contract shall not be affected. The contracting parties will work together in a partnership to find a solution that comes as close as possible to the ineffective provisions. The same applies in the event of a contractual gap.
15. Final Provisions
Unless expressly agreed otherwise, Austrian law applies even if the order is executed abroad. For any disputes, Vienna in Austria is agreed as the jurisdiction.