General terms

General Terms and Conditions of Business

Scope of Application

For all offers, orders, deliveries and services of Novarion Systems GmbH, hereinafter referred to as Novarion, only the following terms and conditions shall apply. These terms and conditions can either be requested from the office or are available on the website novarion.systems at any time. Any other terms and conditions of the Customer, which are not expressly accepted in writing, shall not be binding for Novarion in any case. Verbal, telegraphic, telephonic or other electronic agreements are only effective after written confirmation.

Novarion expressly reserves the right to amend the present “General Terms and Conditions”, in which case the amended version will be sent to the contracting party. The changes are considered approved as soon as they have been signed by the contracting party or if they are not objected to within two weeks of receipt.

Conclusion of Contract

Offers of Novarion are subject to change and non-binding. A contract is only concluded with the written confirmation of the orders placed with us. The contractual partner accepts the “General Terms and Conditions” of Novarion by placing the order, by accepting the delivery or by being included in our customer file.

Patent and Copyrights

Novarion reserves the property rights and copyrights to drafts, circuit diagrams, construction drawings, descriptions and similar documents as well as to the entire software. These products may neither be copied nor made accessible to third parties in any other way without written consent. The contractual partner undertakes to indemnify and hold Novarion harmless from and against any infringement of any patent or other industrial property rights of third parties.

Delivery and Delivery Periods

Unless a fixed date has been expressly agreed, the announced delivery times are not binding, but will be met to the best of our ability. For delayed or not feasible services caused by force majeure, lack of material or other unforeseen incidents, a liability for compensation is excluded. Partial deliveries with separate invoicing are possible.

Ordered goods are to be collected or taken over within 5 working days from notification, otherwise the costs of the delay are to be borne by the contractual partner. In case of impossibility of delivery to the address indicated by the contracting party, the goods shall be deemed to have been taken over, the contracting party shall bear the costs incurred thereby.

Shipping

Shipment is carried out from the registered office of Novarion, respectively from the registered office of the subcontractors commissioned by Novarion at the expense and risk of the contractual partner. The risk is transferred to the contractual partner when the ordered goods are handed over to the persons carrying out the transport, but in any case when the goods leave the factory/warehouse. If shipment or handover is delayed for reasons for which Novarion is not responsible, the risk shall pass to the contractual partner as soon as the goods are ready for shipment.

Withdrawal

All agreements concluded between customers and Novarion’s employees come into effect under the condition precedent that the management agrees to them. Novarion is free to deny approval of legal transactions initiated by its representatives/employees. The Contractual Partner shall be notified thereof within 10 working days.

Prices, Terms of Payment, Default Interest

All prices and additional costs are calculated according to the product and service costs, expenses and currency exchange rates valid at the time of the offer. Errors, changes and misprints are reserved. Current individual prices can be requested from Novarion at any time and are always valid in the latest version.

If the wage or production costs, collective bargaining regulations in the industry, due to internal agreements or other cost centers relevant for the calculation or costs necessary for the performance such as those for materials, energy, transport, external work, financing, etc. change, Novarion is entitled to increase or decrease the prices accordingly; the same applies to manufacturer-side changes in the manufacturing costs as well as the procurement costs for the goods. Novarion is entitled to change the prices and additional costs at any time if the market price of the contractual goods changes (increases) as long as the goods have not been delivered or the contractual partner has not yet made a payment. The prices are net and exclusive of VAT and shipping costs. All shipping costs, in particular packaging, transport costs and transport insurance, environmental taxes, as well as the statutory value added tax shall be borne by the contractual partner.

Unless otherwise stated, the invoice date for goods is also the date of shipment. In the case of services, the invoice can be issued either at the time of performance or at the end of a calendar month.

Subject to a positive credit assessment, a payment term of 7 days net is granted.

Otherwise, delivery will only be made against cash in advance or cash on delivery.

Liability for consequential harm caused by a defect, in particular for loss of data, is excluded.

Standard – Service Levels 

Unless otherwise agreed, Novarion’s service levels are considered as an integral part of any activity of technicians or other employees, as well as subcontractors of Novarion, as follows.

Service levels are guaranteed at an agreed place and time. The principle is that the guarantee to meet a service level can be met at a high percentage (>98%) based on human judgment and can be overridden by unforeseen events such as force majeure. In such cases Novarion will report to the customer as soon as possible and propose an alternative scenario.

1st Level SupportUncritical Incidents (Incidents): 1 business day to response; troubleshooting is initiated immediately thereafter and then happens depending on the error; usually within another business day

Critical Incidents (Mission Critical): 4 hours to response; troubleshooting is initiated immediately thereafter and if not resolvable is handed over to 2nd Level Support within 1 hour
2nd Level SupportFaults that cannot be resolved in 1st Level Support come to 2nd Level. These employees do not need to have any contact with the service recipient. The finished message goes back to the 1st level support, which informs the service recipient about it and accepts the service if necessary. The 2nd level support must solve all errors that cannot be covered by 3rd parties (suppliers of Novarion or the service recipient) within the 3rd level support.Mission-Critical Incidents are preferred by 2nd level support to Non-Mission-Critical Incidents in processing.

3rd Level Support: If a fault cannot be solved with reasonable financial effort without the help of a 3rd party (e.g. manufacturer), 3rd Level Support takes care of the rectification. The turnaround times depend largely on the respective 3rd party. After completion, the 3rd level support hands over the result to the 1st level for delivery to the service recipient.

Definition of Mission Critical:
These types of incidents significantly impact the potential service recipient’s business. These are, for example, the total failure of email or internet or the failure of essential parts of the enterprise resource planning system such as deliveries from the warehouse.

Subsidiary agreements and partial effectiveness

All subsidiary agreements and amendments must be made in writing. Should the above terms and conditions be partially invalid, both the contract based on them and the remaining terms and conditions shall remain unaffected.

Many of the things regulated in this contract, especially the service levels, can be modified and regulated separately with Novarion for the respective case of application. As long as these changes have not been signed by all contracting parties, the present contract conditions apply to all business cases in which Novarion is directly or indirectly involved.

Re-export of products

In case of products which are subject to the technology transfer control for foreign technology goods (BGBl. 184/1984, 11/1985, AHG-Nov. 1988 BGBl. 377 – idgF), the sale of the products in question shall only take place under a legally binding transfer of the following obligations: The re-export of such goods – also in processed or dismantled form – is only permitted with the consent/approval of the competent Federal Ministry for Economic Affairs. This obligation is to be transferred to each domestic buyer with the further obligation to transfer it to any further domestic buyers.

The contracting party is obliged to provide the approval itself and to instruct the transporter responsible for the export.

A deviating term of payment requires a written agreement.

Bills of exchange and checks will only be accepted upon express written agreement.

Novarion is entitled to cancel payment terms and to make outstanding amounts due immediately if Buyer’s creditworthiness deteriorates significantly or if composition or bankruptcy proceedings are initiated against Buyer’s assets or if a corresponding petition is rejected due to lack of assets to cover costs.

In the case of projects consisting of several partial deliveries, corresponding partial invoices shall be issued for the individual partial deliveries, which shall be settled within the respective payment period for the invoice. At the beginning 1/3 deposit of the total project sum is to be paid. If partial deliveries are made continuously in projects, e.g. in software development, that part of the total order can be invoiced which corresponds to the progress of the project in percent according to the current project plan. 10% of the total project remains for the final acceptance, which will be charged after this. After that, the project is considered completed. Afterwards, further improvements to the delivery item can be made either through warranty (e.g. bug fixing for software) or through extension orders.

If the agreed payment deadline is exceeded, default interest of 9.2% (§ 456 UGB) per month will be charged.

Offsetting or withholding of payments due to existing or alleged counterclaims is – for whatever reason – not permitted. This does not affect the provision of § 6 para 1 KSchG.

If equipment or systems cannot be handed over, installed or put into operation due to circumstances for which Novarion is not responsible, payment must nevertheless be made as if the deliveries, installations or commissioning had taken place at the scheduled time.

In case of default with his contractual obligations, the contracting party undertakes to reimburse Novarion for the reminder and collection expenses incurred thereby, whereby the contracting party undertakes in particular to reimburse at most the remuneration of the collection agency involved, which results from the ordinance of the Federal Minister for Economic Affairs on the maximum rates of remuneration due to collection agencies – in the respective valid version -, BGBl 1986/141. If Novarion is upstream or runs a dunning process on its own, the contractual partner undertakes to pay a contribution of € 11,- per reminder and an amount of € 4,- per half-year for keeping records of the debt relationship in the dunning process.

Retention of title

The products delivered by Novarion remain its property until payment has been made in full; in the event that the delivered goods are treated or processed, this also applies with regard to the new items. The contracting party may sell the delivered goods or the new items resulting from their treatment or processing (in short: products subject to retention of title) only in the ordinary course of business. The contracting party already now assigns to Novarion by way of security the claims to which it is entitled from the resale or from any other legal ground relating to the products subject to retention of title. He is authorized to collect the assigned claims as long as he fulfills his payment obligation towards Novarion according to the contract. The contractual partner must notify us immediately of any access by third parties to goods subject to retention of title or to the claims assigned in advance, handing over the relevant documents. The costs of any intervention shall be borne by the contractual partner.

Warranty and liability

The warranty provisions of Austrian law shall apply, in addition to the following provisions.

Novarion warrants that the object of purchase is free of defects in accordance with the respective state of the art. Novarion is entitled to be released from claims for cancellation of the contract or for a reasonable reduction by replacing the defective item with a defect-free one within a reasonable period of time or by making an improvement or by replacing what is missing, all of this at Novarion’s discretion; the invoice value can also be replaced.

Warranty is excluded, however, if the contracting party of its own accord makes changes or repairs to the delivered goods. Novarion shall not be liable if third-party parts are improperly installed in delivered devices and damage or defects occur as a result; the same applies to improper or faulty installation of third-party software. Warranty is also void if despite proper handling of the equipment by a Novarion technician, the equipment is put into a defective condition during handling.

If deliveries or services are provided by a subcontractor, the subcontractor shall be directly liable to the customer for all deliveries and services provided there. The subcontractor shall indemnify and hold Novarion harmless in this respect. However, Novarion expressly reserves the right to hold the subcontractor liable for claims of the customer against Novarion, which arise due to improper actions or gross negligence or intentional fault of the subcontractor.

For measurable services guaranteed by Novarion, such as delivery times, response times and the like, it applies that these will be met to the best of Novarion’s ability, however, in a small percentage of the total number of these services due to adverse circumstances or force majeure, non-compliance with this promise may occur. However, such non-compliance does not constitute a breach of contract by Novarion as long as this does not happen three times in a row.

Complaints of any kind must be made in writing immediately after receipt of the goods. The warranty period is 2 years, unless otherwise stated on the invoice, but for business to business transactions it is limited to 6 months. The liability, as well as for other defaults in performance, is in any case limited to intent and gross negligence.

For products not manufactured by Novarion, the warranty obligation is limited to the assignment of warranty claims against the respective manufacturer. All costs associated with rectification or replacement (e.g. transport costs) shall be borne by the contractual partner.

Data protection

The contractual partner agrees to the storage of personal and/or company-related data, the same applies to Novarion. Furthermore, the contractual partner is prohibited from passing on data of any kind about Novarion itself, its employees or about Novarion’s business partners to third parties without Novarion’s express written consent. In all other respects, the data protection provisions of Austrian law shall apply.

Jurisdiction and place of performance

The place of jurisdiction for all legal disputes arising from the business relationship and regarding the origin or validity of the contract and the place of performance for services to be rendered to Novarion is Vienna. Austrian law shall apply to all disputes between Novarion and the business partners.

Status: January 2020